In re Edwall's Estate

• Court: Washington Supreme Court
• Writing for the Court: PARKER, J.
• Citation: In re Edwall's Estate, 134 P. 1041, 75 Wash. 391 (Wash. 1913)
• Decision Date: 13 September 1913
• Parties: In re EDWALL'S ESTATE. v. JESSEPH et al. EDWALL

134 P. 1041

75 Wash. 391

In re EDWALL'S ESTATE.

EDWALL v. JESSEPH et al.

Supreme Court of Washington

September 13, 1913

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Petition by Ida Edwall against Ward Jesseph, Executor, and others to set aside a will of Peter Edwall previously admitted to probate and to establish another will as deceased's valid last will and testament. From a decree denying the relief sought, the petitioner appeals. Affirmed.

Hurn & Upton, of Spokane, for appellant.

M. E Jesseph, of Spokane, and L. C. Jesseph, of Colville, for respondents.

PARKER J.

This proceeding is in form a will contest wherein Ida Edwall, the widow of Peter Edwall, deceased, seeks to have the will of her husband, which was executed on July 9, 1910, set aside as void, and his will which was executed on July 3, 1909 established as his valid last will and testament. The proceeding is also, in substance, an action to enforce specific performance of an alleged contract entered into between Ida Edwall and her deceased husband, by which they agreed to make mutual wills, and in pursuance of which contract they each executed wills on July 3, 1909. The will then so executed by Peter Edwall is the one she seeks to have established by this proceeding. A trial upon the merits resulted in a decree denying the relief prayed for by Ida Edwall, from which she has appealed. The principal question here involved is as to the validity and binding force of the alleged contract by which Ida Edwall and Peter Edwall agreed to make the wills of July 3, 1909, in the light of the statute of frauds. The facts disclosed by the record as determinative of this problem are, in substance, as follows:

Appellant was married to Peter Edwall in the year 1893. At that time each owned a considerable amount of land in Lincoln county. They thereafter acquired some additional real property in Spokane county. They had no children. On January 20, 1909, Peter Edwall signed and duly acknowledged two warranty deeds, which in form purported to convey to appellant, his wife, real property situated in Lincoln and Spokane counties. At the same time appellant signed and duly acknowledged two warranty deeds, which in form purported to convey to Peter Edwall, her husband, real property situated in Lincoln and Spokane counties. We assume that all of the real property then owned by each of them was described in these deeds. These deeds were then placed in the hands of one Rogers, of Spokane, who had prepared them for appellant and her husband, with the understanding that the deeds of the one who should die first should be immediately thereafter placed of record, and the survivor thereby become the owner of all of the property. It is manifest that at that time they took this method of testamentarily disposing of their property in lieu of making wills. These deeds upon their face are absolute warranty deeds, each reciting a consideration of 'one dollar and other valuable considerations.' Neither of them contain any statement whatever indicating the purpose or motive of their making other than such as would be found in ordinary deeds with covenants of warranty. We have no evidence upon this subject, save oral testimony. Shortly thereafter Peter Edwall procured the deeds from Rogers, without the knowledge of appellant, and caused the ones executed by appellant to him to be recorded. There is considerable controversy touching the motive of Peter Edwall in acquiring possession of these deeds. However, soon thereafter he sought to make amends by executing quitclaim deeds back to appellant and causing the same to be recorded. Thereafter, on July 3, 1909, Peter Edwall executed his will in due form disposing of all of his property as follows:

'Know all men by these presents: That I, Peter Edwall, a resident of Spokane, Spokane county, Washington, of the age of 57 years, being of sound and disposing mind, do hereby make, publish and declare this instrument to be my last will and testament, in manner and form following, to wit:

'(1) I hereby give, devise and bequeath to each of the following named persons, the sum of one ($1.00) dollar: My sisters Kate Westerberg, and Mary Erickson, and my brothers Andrew Edwall and C. W. Edwall.

'(2) I hereby give, devise and bequeath to my beloved wife, Ida Edwall, all the rest, remainder and residue of all the property of every kind, and description, real, personal and mixed, that I may have, own or be entitled to, at the date of my death, to have and to hold in her own right absolutely forever.'

'In witness whereof, I have hereunto set my hand at Spokane, Spokane county, Washington. this 3d day of July, A. D. 1909.

'[Signed] Peter Edwall.'

On the same day, and evidently simultaneously with the execution of this will of Peter Edwall, appellant executed her will in due form disposing of all of her property as follows:

'Know all men by these presents: That I, Ida Edwall, wife of Peter Edwall, residing at Spokane, Spokane county, Washington, being of the age of 68 years, and of sound and disposing mind, do hereby make, publish and declare this instrument to be my last will and testament, in manner and form the following, to wit:

'(1) I give, devise and bequeath to each of my sisters, Anna Anderson, Lota Anderson and Kate Shlander, and my brothers Andrew Edquist and Nels Anderson, the sum of one ($1.00) dollar.

'(2) I give, devise and bequeath to my beloved husband, Peter Edwall, all the rest, remainder and residue of all the property of every kind, and description, real, personal and mixed, that I may have, own or be entitled to, at the date of my death, to have and to hold in his own right absolutely forever.

'In witness whereof, I have hereunto set my hand at Spokane, Spokane county, Washington, this 3d day of July, A. D., 1909.

'[Signed] Ida Edwall.'

The execution of these wills was attested by the same witnesses. Neither of them contained any statement or provision other than as above quoted, so they bear no evidence whatever upon their face indicating that one was executed in consideration of the other or that they were executed in pursuance of any contract which would in the least affect or curtail the power of either testator to revoke the same. We have no evidence touching the making of such a contract, save oral testimony.

There is evidence tending to show that at the time of making these wills appellant had not learned of the acquiring of the possession of the deeds by her husband; but, however that may be, it seems plain that they made these wills with the view of their taking the place of the deeds. Assuming that the deeds were only testamentary documents, nothing can be clearer than that the making of these wills was a revocation thereof. Thereafter, on July 9, 1910, Peter Edwall executed in due form another will wherein he expressly revoked all former wills by him executed, appointed Ward Jesseph, this respondent, his executor, and devised all of his estate to Ward Jesseph in trust, so that his wife, this appellant, would receive during her lifetime the larger portion of the income therefrom, and upon her death his estate to be distributed to certain of his relatives, naming them. For the sake of argument we shall assume that this last will was made without notice to the appellant, and that she did not learn of the making of it until after her husband's death, which occurred on January 8, 1912. Thereafter, on January 26, 1912, this last will of Peter Edwall was admitted to probate in the superior court for Spokane county, and Ward Jesseph, this respondent, entered upon his duties as executor thereof. Thereafter, on March 14, 1912, appellant filed her petition contesting this last will of Peter Edwall upon two grounds, stated in appellant's brief, as follows:

'(1) That the mutual wills executed by deceased and petitioner on July 3, 1909, under the oral agreement that the survivor should have all the property of the one dying first, were valid and binding and were irrevocable, except by agreement or upon notice by one to the other of his intention to revoke his said will, which notice was never given petitioner, and because thereof, deceased had no property upon which the will admitted to probate could operate, and same was void.

'(2) That at the time of the execution of said will deceased was mentally incompetent to execute a valid will.'

Citation was thereupon issued against respondent, the executor, and the legatees named in this last will, who answered appellant's petition, when a trial was had, resulting in a decree against the claims of appellant as we have stated.

We do not understand that counsel for appellant make any serious contention here touching the competency of Peter Edwall to make a will at the time of executing this last will. We conclude, in any event, that the evidence wholly fails to show want of competency on his part at the time, as held by the trial court.

We proceed, then, to the examination of the question of the power of revocation of the will of July 3, 1909, in Peter Edwall, exercised by him in the making of his last will of July 9, 1910. We shall assume for argument's sake that there was introduced upon the trial sufficient oral evidence to show that the wills of July 3, 1909, were made in pursuance of such a contract between appellant and the deceased as would render those wills revocable before the death of either only by agreement or upon notice. This reduces our problem to the question of the binding force of such a contract, in the light of the statute of frauds having in mind that the property disposed of by the wills was principally, if not all, real property. If there was no such contract binding in law upon Peter Edwall, manifestly his last will, which...