In re Chapin's Estate

• Decision Date: 17 March 1943
• Docket Number: 28746.
• Citation: 135 P.2d 445,17 Wn.2d 196
• Court: Washington Supreme Court
• Parties: In re CHAPIN'S ESTATE.

135 P.2d 445

17 Wn.2d 196

In re CHAPIN'S ESTATE.

No. 28746.

Supreme Court of Washington

March 17, 1943

Department 2.

Proceeding in the matter of the estate of Dora E. Chapin, deceased wherein Virgil W. Chapin and others contested the will of deceased. From a decree holding the contested will invalid on ground of incompetency and undue influence and admitting a former will to probate, the proponent appeals.

Reversed with directions.

MILLARD J., dissenting.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Ballinger Hutson & Boldt, B. H. Camperson, and Joseph A. Sweeney, all of Seattle, for appellant.

Lynwood W. Fix, of Seattle, for respondents.

ROBINSON, Justice.

This is an action to contest the will of Dora E. Chapin. Mrs. Chapin died January 14, 1941, at the age of sixty-nine. By the terms of the will, which was executed November 13, 1940, she left her property to her husband, Virgil W. Chapin, her son, Louis F. Chapin, her adopted daughter, Evelyn Dorothea Chapin, and Delbert W. Sweitzer, a one-fourth interest to each. The contestants are the husband, son and and the guardian of the adopted daughter. It is claimed that Mrs. Chapin, at the time of the execution of the will, lacked mental capacity to make a will and acted under duress and undue influence exercised by Sweitzer. In the same petition, contestants sought further probate of a will executed by Mrs. Chapin September 8, 1936. The trial court held the will of November 13, 1940, invalid on the grounds of incompetency and undue influence, and admitted to probate the will of September 8, 1936.

There are 1,389 pages of evidence. Obviously, our review of such a mass of testimony must be confined to the principal points only, and, in so confining it, we must of necessity, omit discussion of a great deal of evidence which has been relied upon by the contestants in their briefs and upon oral argument, including some very involved evidence which the trial court thought, and perhaps rightly, indicated Sweitzer's untrustworthiness. In the interest of brevity, it will be assumed arguendo--but only so--that Sweitzer was fully capable of resorting to undue influence.

In July, 1935, Mrs. Chapin suffered an apoplectic stroke, which produced inability to speak, except to a very limited extent, and partial paralysis of her right arm and leg. Her condition was described by her physician as hemiphlegia of the left side and resultant aphasia. The evidence shows that the stroke in no way affected her intellect, only her ability to speak. For several years thereafter, she was up and around, receiving visitors, attending to household affairs, and transacting business. Enumerated in the testimony as some of the words she could articulate distinctly are: 'Yes,' 'No,' 'Louie,' (she called Sweitzer 'Louie'), 'Tea and toast,' 'peaches,' 'poor baby,' 'nice baby,' 'Oh, boy,' 'puppy,' 'Roosevelt,' 'McKenzie King,' 'Alabama.' As far as her immediate needs were concerned, no one, who, was intimately acquainted with her and with her gestures and expressions, had difficulty in understanding her meaning. Dr. Bouffleur, in describing her condition in 1936, testified: 'Mrs. Chapin was a very forceful character. She had very positive opinions, and she was capable of expressing her opinions. She was interested in political and current affairs. She appreciated a joke and was quite normal, except that she could not speak.'

On Christmas day, 1938, after preparing the Christmas dinner, she became suddenly ill and went to bed. From that time until the time of her death, except on occasions when she was able to get upon and sit by the window, she was confined to her bed, Sweitzer testified that the last time she was out of bed was in October, 1939. Sweitzer nursed and took care of her. The evidence shows that Sweitzer, for more than twenty-five years, had resided in the Chapin household in Seattle or with Mrs. Chapin on a ranch owned by her at Tete Jaune, British Columbia. At this ranch in British Columbia, Mrs. Chapin spent many years of her life, raising chickens, pigs, and cattle. It was at this ranch that she received the stroke in 1935.

Kay Channel, a young girl whom Mrs. Chapin had employed at the ranch, served as a maid or companion to Mrs. Chapin. She attended Mrs. Chapin in the daytime, and Sweitzer attended her when she called at night. Miss Channel left in April, 1939. Thereafter, Sweitzer took entire charge of Mrs. Chapin. A maid was employed in the household most of the time, but it was not a part of her duties to take care of Mrs. Chapin. A trained nurse was employed in January and February, 1940, when she was suffering from a bladder ailment, and in January, 1941, just prior to her death. Otherwise, Sweitzer performed all of the services that were performed for Mrs. Chapin in the way of nursing and care. He cooked the food she ate, washed her face, combed her hair, bathed her, answered her calls at night, gave her her medicine, fed her with a spoon during the last months of her life, and otherwise performed all those services which had to be performed for an invalid who was unable to do anything for herself.

The son, Louis, thirty-eight years of age, moved to Portland, Oregon, in the spring of 1938, and to Los Angeles, California, in July, 1940. The last time he saw his mother alive was in March or April, 1940. The sister, Lottie, and her husband, Dr. Bouffleur, generally occupied their home in California during the winter months of each year. The adopted daughter, Evelyn, was a little girl eleven or twelve years of age, whom Mrs. Chapin had adopted in Canada as a baby. Her mother was a young girl whom Mrs. Chapin had employed at the ranch and whose husband deserted her Before the baby was born. Evelyn was taken to California by Mrs. Bouffleur. Mr. Chapin was employed by the Chicago and Milwaukee railroad as chief telegrapher. His work required that he be at the office seven days of the week, including Saturday afternoon and Sunday. The evidence shows that he was in such physical and mental condition that it would have been impossible for him to perform for Mrs. Chapin the services that were performed by Sweitzer. He was of the same age as Mrs. Chapin. He paid the expenses of the household. Mrs. Chapin's brother, Thomas Martin, who resided in California, paid the hospital bills and contributed twenty-five dollars a month toward the expense of taking care of Mrs. Chapin. After Kay Channel left, Sweitzer received from Mr. Chapin thirty dollars a month, which was the salary that Miss Channel had received.

The evidence shows that there was much discord in the family over property and money matters. We shall not attempt to review this testimony, except to mention one incident which is somewhat typical. In March, 1940, Mr. Chapin gave the family car to Louis who needed a car in his business. Mrs. Chapin objected on the ground that they might need the car and because Louis was not a careful driver, being addicted to the use of intoxicating liquor. Mr. Chapin testified that he explained to Mrs. Chapin that he did not think that they needed a car, and that, if they should need a car, he could obtain another. Mrs. Chapin made her objection known to her sister, Mrs. Bouffleur. She spoke to her husband, Dr. Bouffleur, who informed her that, as the car was community property, Mr. Chapin would be privileged to give it to Louis. Mrs. Bouffleur testified that she communicated to Mrs. Chapin Dr. Bouffleur's opinion with regard to the matter, and that thereafter Mrs. Chapin never mentioned the matter of the car again. Sweitzer went out and purchased a second-hand car, and Mrs. Chapin paid sixty dollars of the down payment.

The evidence shows beyond all question that the services performed by Sweitzer were performed at Mrs. Chapin's request and because it was her wish that she be taken care of by Sweitzer. In the fall of 1939, Mr. Chapin and Mrs. Bouffleur suggested to Mrs. Chapin that she be taken to a sanitarium, but she refused to be sent there. The evidence also shows beyond all doubt that the services performed by Sweitzer for Mrs. Chapin were most tender and affectionate. The testimony of a young girl who was employed in the household as a maid between September 23, 1940, and November 2, 1940, is typical of all of the testimony relating to Sweitzer's care and treatment of Mrs. Chapin. Called as a witness by contestants, she testified, on direct examination, as follows:

'One day I was doing the ironing and Dick [Sweitzer] came to me and said--Mother had had a very bad night one night, so he says: 'If this keeps up any longer I will be a dead man pretty soon.' And I said, 'I don't see why you wish to keep Mother alive when she is so weak and seemingly so near the end and seemingly wants to be free from it all.'

'Q. Did you get that impression at times from her? A. Yes, sir.

'Q. And what did he say? A. Well, he said, 'Well, if she was my mother I would want to keep my mother alive just as long as possible.' And he said that he was just keeping her alive and was working there just because he loved her, and because she was like a mother to him.'

Mrs. Mercer, a friend of the family for more than thirty years and whose husband, prior to his death, had for years been chief telegrapher for the Chicago and Milwaukee railroad and Mr. Chapin's superior in the office of that company, testified that she never failed to visit Mrs. Chapin during the period of her sickness at least once a month. In describing Sweitzer's treatment of Mrs. Chapin, she testified: 'I don't know how to put it into words. It was just wonderful.'

The property in Canada was Mrs. Chapin's separate property having been homesteaded by her in 1914. Mr. Chapin also, at her request, had executed to her...