In re O'Brien's Estate, 28463.

• Decision Date: 18 May 1942
• Docket Number: 28463.
• Citation: 126 P.2d 47,13 Wn.2d 581
• Court: Washington Supreme Court
• Parties: In re O'BRIEN'S ESTATE. v. O'BRIEN et ux. LYNCH

126 P.2d 47

13 Wn.2d 581

In re O'BRIEN'S ESTATE.

LYNCH v. O'BRIEN et ux.

No. 28463.

Supreme Court of Washington

May 18, 1942

Department 1.

Proceeding in the matter of the estate of Julia E. O'Brien deceased, wherein John S. Lynch, Senior, filed a petition contesting the will, opposed by Lester P. O'Brien and Irene O'Brien, his wife. From the decree, Lester P O'Brien and Irene O'Brien, his wife, appeal.

Reversed and remanded.

Appeal from Superior Court, Thurston County, John M. Wilson, judge.

Thomas L. O'Leary and Ernest L. Meyer, both of Olympia, for appellants.

Harry Ellsworth Foster and John S. Lynch, Jr., both of Olympia, for respondent.

DRIVER, Justice.

Julia E. O'Brien died February 19, 1940, leaving a will dated October 13, 1938. By order of the superior court, the will was admitted to probate, and the appointment of Lester P O'Brien and Irene O'Brien, the joint executor and executrix nominated therein, was confirmed. Within six months thereafter, John S. Lynch, Sr., filed a petition contesting the will on the grounds that its execution had been induced by undue influence, and that the testatrix had lacked testamentary capacity. The contestant also presented for probate a will of the decedent executed in 1931, which named him as an executor. He was not related to the testatrix, nor was he a legatee or devisee under either will. The disposition of the estate under the provisions of the later will was substantially different from that of the earlier one. The court found for the contestant on the issue of mental incapacity of the testatrix and against him as to undue influence. From a decree revoking the probate of the later will and admitting the prior will to probate, the joint executor and executrix have appealed.

At the very outset, we encounter appellants' contention that respondent was not a proper person to wage a will contest under Rem.Rev.Stat., § 1385, which provides that: 'If any person interested in any will shall appear within six months immediately following the probate or rejection thereof, and by petition to the superior court having jurisdiction contest the validity of said will, or appear to have the will proven which has been rejected, he shall file a petition containing his objections and exceptions to said will, or to the rejection thereof.'

Specifically the question presented by appellants' contention is this: Was respondent, as an executor named in the earlier will, authorized to contest the later will as a 'person interested' within the meaning of the statute? The question has never Before been passed upon by this court, and, as both parties to the present appeal agree, the cases from other jurisdictions are in hopeless conflict.

Generally, it has been held, not only under statutes such as ours, but also in the absence of statute, that, to contest a will, a person must have an interest therein, and that this interest must be a direct, pecuniary one. In other words, the contestant must stand to lose directly in a financial way if the will which he seeks to attack is permitted to stand.

'The usual statutory provision, both in relation to opposition of probate in the first instance and petition to revoke probate or to contest after probate, is that 'any person interested' may contest the will or the probate thereof. It is an elementary proposition that the only persons authorized to contest or seek revocation of the probate of a will are those who, but for the will, would succeed in some degree to the decedent's estate. That 'interest' which gives one standing to contest a will must be direct and pecuniary and such as to be affected by the probate of the will. It must also be an existing interest, and not merely one which may subsequently be acquired.' 1 Bancroft's Probate Practice, p. 312, § 171.

The following well-worded definition of 'person interested' is quoted from the opinion in Petitt v. Morton, 1928, 28 Ohio App. 227, 235, 162 N.E. 627, 629: '* * * a 'person interested' is one who has a direct, immediate, and legally ascertained pecuniary interest in the devolution of the testator's estate, such as would be impaired or defeated by the probate of the will or benefited by the declaration that it is invalid. The pecuniary interest must be direct and not of a sentimental nature, and it must have the characteristics of a property right and not of a mere personal privilege.'

Practically without exception, the courts have held that the heirs and next of kin of the testator and devisees and legatees under a prior will are authorized to wage a contest as persons interested in the putative will, but there has been sharp disagreement as to whether or not an executor under a prior will or a previously appointed administrator is eligible.

In the case of In re Estate of Stewart, 1898, 107 Iowa 117, 77 N.W. 574, the supreme court of Iowa held that the executors named in a will could not contest a codicil appointing other executors. The court said, at page 118 of 107 Iowa, at page 574 of 77 N.W.: 'The fact that an executor is to receive compensation out of the estate cannot be said to give him an interest therein, for he gets this only in return for services rendered. He is expected to give full value therefor. It is claimed, however, by appellants, that an executor has, by virtue of his office, a property interest in the personal estate. Any such interest is a mere naked trust upon which no such right as that here claimed can be predicated.'

This language was quoted with approval by the Maryland court of appeals in Helfrich v. Yockel, 1923, 143 Md. 371, 122 A. 360, 31 A.L.R. 323. In that case also, it was held that an executor did not have sufficient interest to contest the probate of a codicil to a will.

In the following cases, it was held that an executor under an earlier will cannot caveat, or contest, a later will: Johnston v. Willis, 1925, 147 Md. 237, 127 A. 862; Reed v. Home National Bank, 1937, 297 Mass. 222, 8 N.E.2d 601, 112 A.L.R. 657; Morgan v. Dietrich, 1940, 178 Md. 66, 12 A.2d 199.

In each of these cases, however, the court concluded that a trustee named in the earlier will could prosecute a contest. The basic reason for making the distinction seems to be that a testamentary trustee has a more substantial interest than an executor under an earlier will; that the trustee is clothed with title, and, in the language of Reed v. Home National Bank, supra [297 Mass. 222, 8 N.E.2d 602, 112 A.L.R. 657], 'In fact a trustee is a legatee, and he takes legal title as such.' The executors named in a will and an additional executor named in a codicil, it has been held, cannot submit to arbitration the question whether the testator had sufficient mental capacity to execute the codicil, as the codicil may be declared invalid only in a will contest action waged by a person or persons having some pecuniary interest in the property of the estate. In re Meredith's Estate, 1936, 275 Mich. 278, 266 N.W. 351, 104 A.L.R. 348. Some courts have gone so far as to hold that the administrator of an estate, who has been appointed and has qualified and assumed the duties of his office, cannot contest a will of his decedent presented for probate subsequent to his appointment. Cajoleas v. Attaya, 1927, 145 Miss. 436, 111 So. 359, 58 A.L.R. 1457; Austin v. Patrick, 1937, 179 Miss. 718, 176 So. 714; Estate of Miller, 1939, 54 Ariz. 58, 92 P.2d 335.

In the Cajoleas case, after referring to the conflict of authority on the question, the court said, at page 448 of 145 Miss., at page 361 of 111 So., 58 A.L.R. 1457: 'We think, however, that the sounder view is that the administrator is not interested in the estate within the purview of the statute giving the right to contest to an 'interested party,' and that it is the affair of the heirs or other interested parties, as such, to contest, if they desire, the probate of the document, not of the administrator. As was said in the case of Hoskins v. Holmes County Community Hospital, supra [135 Miss. 89, 99 So. 570], in which the holding of the court in the case of Kelly v. Davis, 37 Miss. 76, in reference to the duty of an executor to contest a subsequent will, was reviewed, the administrator may and 'his duty is to notify the beneficiaries under the will that they may take appropriate action to protect their interest.''

In State ex rel. Eakins v. District Court, 1906, 34 Mont. 226, 85 P. 1022, it was held that a public administrator does not have such an interest in the estate of a deceased person as to entitle him to offer objection to the probate of the decedent's will.

We turn now to an examination of the cases cited by respondent on the question under consideration.

Matter of Greeley's Will, 1873, 15 Abb.Prac.,N.S., 393, was a proceeding Before a New York surrogate. After a will had been propounded for probate, the executors named in an earlier will presented it, and claimed that the later one was void for lack of testamentary capacity. The two causes were consolidated, and it was held that the executors under the prior will were entitled to oppose admission to probate of the subsequently executed one. The movable goods of the testator vested upon his death in whichever executor ultimately succeeded in establishing, as the testator's valid last will, the will in which he was named, the surrogate reasoned; and, therefore, the proponents and contestants of the later will were, in effect, trying their alleged titles.

In re Browning's Will, 1937, 274 N.Y. 508, 10 N.E.2d 522, the New York court of appeals held that an executor named in a will was entitled to contest a second codicil as a 'person interested' within the meaning of the Surrogate's Court Act. However, the pertinent section of that act, as summarized in the opinion, provided...