In re Bush's Estate, 26921.

• Decision Date: 13 July 1938
• Docket Number: 26921.
• Citation: 81 P.2d 271,195 Wash. 416
• Court: Washington Supreme Court
• Parties: In re BUSH'S ESTATE. v. BILLINGTON et al. SHOEMAKER

81 P.2d 271

195 Wash. 416

In re BUSH'S ESTATE.

SHOEMAKER v. BILLINGTON et al.

No. 26921.

Supreme Court of Washington

July 13, 1938

Department 2.

Appeal from Superior Court, King County; Clay Allen, Judge.

Proceeding in the matter of the estate of William Bush, deceased. A will making Bessie. Shoemaker the sole beneficiary thereunder and naming her executrix without bond was admitted to probate. The will was contested by Carrie Billington and others. From the decree, Bessie Shoemaker appeals.

Affirmed.

J. Will Jones and J. F. Knight, both of Seattle, for appellant.

Sam L Levinson and Jay Friedman, both of Seattle, for respondents.

BEALS, Justice.

William Bush died in the city of Seattle, February 6, 1937, aged approximately ninety years, leaving surviving him six daughters and three children of a deceased daughter. Mr. Bush had resided in the city of Seattle and vicinity for approximately thirty years, and up to a short time prior to his death, had been engaged in business as a grocer. Mr Bush's wife died in 1930, and shortly thereafter, Mr Bush, who was suffering from failing eyesight and old age sold his grocery business, and went to live with his daughter, Carrie Billington, and her husband, paying them for his board and lodging. The six surviving daughters of Mr Bush were Alice Burghduff, Bessie Shoemaker, Regina (Jennie) Walters, Carrie Billington, Margaret Blake and Emma Hiltbrunner. The three grandchildren were William, Charles and Richard Luther.

Shortly after the death of Mr. Bush, a will which he had executed was admitted to probate. Under this will, the testator's daughter, Bessie Shoemaker, was named executrix without bond, she being the sole beneficiary under the will. Each of the other daughters was bequeathed one dollar, the grandchildren not being mentioned. The five other daughters and two of the grandchildren contested the will, contending, first, that it was not executed pursuant to the statute; second, that the testator was mentally incompetent to make a will; and third, that the will was obtained through fraud and undue influence exercised by Mrs. Shoemaker. The executrix filed her inventory, showing some real estate and cash on deposit in a savings bank in the amount of $2,326. Later, the executrix moved to strike the cash item from the inventory. The matter came on regularly to be heard, and after a lengthy trial, a decree was entered denying Mrs. Shoemaker's motion to strike the cash item from the inventory, holding the will void, and directing Mrs. Shoemaker to account for all the property of the estate which had come into her hands as executrix. From this decree, Mrs. Shoemaker has appealed.

Error is assigned upon the denial of appellant's motion for a nonsuit; upon the refusal of the court to strike the cash item from the inventory; upon the ruling of the court holding that the money belonged to the estate; and upon the setting aside of the will in appellant's favor. Appellant also contends that the trial court erred in denying her motion for a new trial.

The trial court filed a comprehensive memorandum opinion, and the decree contains extensive recitals of fact. It appears that the court was of the opinion that the will, which was dated February 18, 1936, was executed under the undue influence of appellant, and was not the free and voluntary act of the testator. Appellant earnestly contends that the trial court erred in overruling her motion for nonsuit, and in proceeding with the trial. Examination of the record convinces us that the trial court ruled correctly upon this motion, and put appellant upon her proof. In support of her argument upon this assignment of error, appellant cites many authorities. Of the legion of cases involving will contests, no two are exactly alike, and each case must be decided upon its own peculiar facts. We are clearly of the opinion that the trial court properly overruled appellant's motion for a nonsuit.

The decree of the trial court must stand or fall upon the entire record. Appellant, Bessie Shoemaker, resided in Iowa. Mrs. Walters lived in Oregon. The other four daughters lived in Seattle, or in the vicinity. Prior to 1930, appellant had occasionally visited her parents, at their invitation, the record indicating that Mr. Bush had the usual paternal affection for all of his children. During the month of September, 1935, after residing for approximately four years with the Billingtons, Mr. Bush returned to the home which he had formerly occupied with his wife. His reasons for making this move do not clearly appear from the record, but his pleasant relations with his daughter and son-in-law apparently continued. At this time, his eye sight was seriously impaired, and if not actually blind, it is evident that his vision was very poor. His daughters feeling that the old gentleman should not live alone, it was arranged that appellant should come to Seattle and become her father's housekeeper, the cost of her transportation being provided for her. Prior to this time, Mrs. Billington and her husband had borne the greater portion of the burden of seeing that Mr. Bush was comfortable and properly cared for. He always paid his own expenses.

Prior to appellant's arrival in Seattle, Mr. Bush kept his money on deposit in Washington Mutual Savings Bank, the account standing in his name and that of Mrs. Billington. After appellant's arrival in Seattle, the account was carried in the joint names of her father and herself, but the trial court was of the opinion that both Mrs. Billington and appellant were mere agents of their father, for the purpose of facilitating the withdrawal of funds as needed.

It clearly appears from the record that some ill feeling existed between appellant and certain of her sisters. In her letters, appellant referred to one of her sisters as 'Physic', and one letter contains a reference to 'Mag the rattel snake.' Several leters, written for Iowa by appellant to her sister Mrs. Walters, referred to as Jen, are in evidence. In one of these letters, dated September 19, 1935, appellant. wrote: 'I just mailed you a letter as i got this this morning will send it to you the ice has broke ha ha but the dam hell cats has got him in thier claus Jen I would give anything if you would go and take and live with him i see we have to but in evey place to get something out of him cant you in some way get to Seattle and go thier at his place and see him * * *.'

October 7th, she wrote in part as follows: 'I guess i told you jen you could get their quicker than i can even if i did get the far go over to dad and tell him i will come and have him change the will she has got enough he out to pay her off at one dol and then you get some witnesses to go to dad and have dad tell all he has bought and spent up thier and what he has gave her the best would be to have a lawyler so he could be a strang wittness i tell you if this thing keeps up it will kill dad and then they will get it all now is the time to fight and dont delay a minut * * *.'

Appellant arrived in Seattle late in Cotober, 1935, and on the 27th of that month, appellant wrote her sister a letter containing the following: 'Carrie she came one day Richard comes quiet often Ruth came and took us to the bank yesterday Dad wantes to put Emil ministrator take it out of Billingtons hands and jen it has to be taken car of write soon because Dad is quiet feevel dont tell him i told you about this ministrator we had thinges changed at the bank hoop a la we are getting the last laugh * * *.'

The record amply supports appellant's statements to her sister, it appearing that within a very few days after appellant's arrival in Seattle, the bank account was changed.

Appellant returned to her home in Iowa early in July, 1936, leaving her father alone in his home, where he remained until a few days prior to his death, when he was removed to Mrs. Billington's home, where he died.

The testimony of appellant was taken prior to the trial, by way of a deposition, and she also testified in open court at the trial. The court took occasion to note in considerable detail the fact that appellant's testimony was so confused and contradictory, and in some particulars so unbelievable, as to be completely discredited, not necessarily from the testimony of other persons, but from contradictions and false statements contained in her own testimony. The trial court stated...