In re Brown's Estate

• Decision Date: 23 April 1918
• Docket Number: 14365.
• Citation: 101 Wash. 314,172 P. 247
• Court: Washington Supreme Court
• Parties: In re BROWN'S ESTATE. Petition of STROM.

172 P. 247

101 Wash. 314

In re BROWN'S ESTATE. Petition of STROM.

No. 14365.

Supreme Court of Washington

April 23, 1918

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

In the matter of the estate of John A. Brown. From an order denying probate of his alleged will, Samuel Strom, petitioner for appointment as administrator c. t. a., appeals. Affirmed.

Frank L. Kuhn, of Seattle, for appellant.

MOUNT J.

This appeal is from an order of the lower court denying the probate of an alleged will. The will is as follows:

'Sam Strom's Homestead, 2-19-1904.

'I am sick to death, am 59 years old, have no relations. If I die I want my friend Sam Strom to have all my belongings, real and personal; my homestead down the river my rifle, my books, clothes, dishes, and tools. And as a part of this will, it shall be the duty of Sam Strom to lay me to rest in Arlington Cemetery; and further in case of Strom's failure to return or failure to take me to Arlington, this will is void, my property to go to the state of Washington.

'Sick and alone I here sign my name. God be my witness in the absence of others.

'[Signed] John A. Brown.'

The trial court denied the petition for the reason that the will was not executed in accordance with the laws of this state. The statutes of this state recognize two kinds of wills Written wills and nuncupative wills. Section 1320, Rem. Code provides that:

'Every will shall be in writing, signed by the testator or testatrix, or by some other person under his or her direction in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will in the presence of the testator.'

Section 1330 of the same Code, in reference to nuncupative wills, provides that:

'No nuncupative will shall be good when the estate bequeathed exceeds the value of two hundred dollars, unless the same be proved by two witnesses who were present at the making thereof, and it be proven that the testator, at the time of pronouncing the same, did bid some person present to bear witness that such was his will, or to that effect, and such nuncupative will was made at the time of the last sickness and at the dwelling house of the deceased, or where he had been residing for the space of ten days or more, except where such person was taken sick from home and died before his return. Nothing herein contained shall prevent any mariner at sea or soldier in the military service from disposing of his wages or other personal property by nuncupative will.'

Section 1331 provides that:

'No proof shall be received of any nuncupative will unless it be offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, be first committed to writing, and a citation issued to the widow or next of kin of the deceased, that they may contest the will if they think proper.'

If the will in this case is held to be a nuncupative will, it was not offered for probate within the six months, for it was made in February, 1904, and was not offered for probate until June, 1917. If it was offered as a written will, it was not executed in the manner required by section 1320, Rem. Code, supra. In either event the will was invalid.

It is argued by the appellant that, inasmuch as our statute makes no provision for holographic wills, the common law prevails in this state, and therefore the will, being a holographic will, is valid and subject to...