In re Elliott's Estate

• Decision Date: 19 February 1945
• Docket Number: 29442.
• Court: Washington Supreme Court
• Parties: In re ELLIOTT'S ESTATE. v. ELLIOTT. FRANKFURT

156 P.2d 427

22 Wn.2d 334

In re ELLIOTT'S ESTATE.

FRANKFURT v. ELLIOTT.

No. 29442.

Supreme Court of Washington, En Banc

February 19, 1945

Proceeding in the matter of the estate of Nina Elliott, deceased wherein Eva Leona Frankfurt filed a petition against Thomas N. Elliott, individually and as executor of the estate of Nina Elliott, deceased, for the probate of a later will. From an adverse judgment, Eva Leona Frankfurt appeals.

Reversed with directions.

Appeal from Superior Court, King County; Hugh C Todd, Judge.

John F Reed and Nelson R. Anderson, both of Seattle, for appellant.

Riddell & Riddell, of Seattle, for respondent.

STEINERT Justice.

This was a proceeding in which the petitioner, Eva Leona Frankfurt, sought to have the will of Nina Elliott admitted to probate or, in the alternative, to have the court set aside a decree admitting to probate an earlier will executed by the same testatrix. Upon a hearing Before the court without a jury, the petition was denied. Petitioner thereupon appealed.

On January 23, 1936, Nina Elliott executed a will, leaving all of her property to respondent, Thomas N. Elliott, who was her second husband, and appointing him executor of the will. Mrs. Elliott died in Seattle on December 17, 1942, at the age of seventy-six years, and on December 28th Mr. Elliott, through his attorneys, Henry, Henry & Pierce of Seattle, filed a petition for probate of the will. On the same day, a hearing was had and a decree was entered admitting the will to probate and confirming the appointment of Mr. Elliott as executor. Shortly thereafter, the executor filed his oath and began publication of notice to creditors.

On May 27, 1943, the executor was notified by letter written by Mr. John F. Reed an attorney in Seattle, that on July 10, 1939, he had drawn a will for Mrs. Elliott which she had executed in his office on that day same day and which named Mr. Elliott as executor. In the letter, Mr. Reed also stated that he believed that this was Mrs. Elliott's last will and testament, and offered to deliver the instrument to Mr. Elliott if he would call at the attorney's office. Receiving no answer to the letter, Mr. Reed, on June 2, 1943, filed the will in the office of the county clerk for King county, who placed it in the probate files of the cause involving the earlier will.

It appears that, in the meantime, two members of the firm of Henry, Henry & Pierce, who were the attorneys of record for the estate, had died, and the third member, Mr. Pierce, had entered the armed service. Mr. Reed made inquiry of the county clerk as to who was latterly representing the estate and was given the name of another firm of attorneys. He then communicated with that firm, told one of its members that he had filed the later will with the clerk, and was in turn advised by the attorney that the information would be conveyed to Mr. Elliott, the executor. Mr. Reed seems to have had several conversations, at various times, with the same firm of attorneys respecting the later will and was assured by them that the matter would be brought to Mr. Elliott's attention. However, at the hearing of the present proceeding Before the trial court, it transpired that the firm of attorneys with whom Mr. Reed had communicated had never been employed by Mr. Elliott and had never represented him in the probate matter. The misunderstanding as to who actually succeeded the firm of Henry, Henry & Pierce in representing the estate seems to have come about from the fact that Mr. Pierce on going into the armed service had made an arrangement with the second firm of attorneys to handle all further proceedings in the probate matter, but Mr. Elliott, acting upon his own initiative, had selected, instead, his present counsel to represent him and the estate.

Apparently nothing further was done with respect to the later will until August 20, 1943, at which time the appellant herein by her counsel filed in the pending probate cause her petition to have that will admitted to probate. It will be observed that at the time this step was taken nearly eight months had elapsed since the probating of the earlier will.

While the later will named Mr. Elliott as executor thereof, he was not made a legatee or devisee therein. On the contrary, the entire estate was devised and bequeathed to Mrs. Elliott's two daughters, one of whom is the appellant, and to a minor grandson. It is conceded that the later will was never delivered to Mr. Elliott, the executor, personally, or to his attorneys; it is also conceded that at no time since being informed of the existence of that will has Mr. Elliott done anything whatever toward bringing it to the attention of the probate court.

Appellant's petition in this proceeding first set forth facts which ordinarily would have been sufficient to entitle the later will to probate. As an alternative cause of action, to be considered only in the event that the trial court should deem the decree admitting the earlier will to probate a final judgment, the petition set forth at length allegations to the effect that probate of the former will had been procured through fraud, mistake, and irregularity, and that, through inadvertence and unavoidable avoidable casualty, appellant and the other beneficiaries under the later will had been prevented from defending against respondent's petition to probate the earlier will and from asserting and maintaining their rights under the later will.

Respondent in his answer to appellant's petition set up a general denial and two affirmative defenses: (1) The six-month statute of limitations, and (2) mental incompetency on the part of the decedent at the time of making the alleged will of July 10, 1939. Appellant joined issue by reply, denying the allegations of the affirmative defenses contained in the answer. The matter then came on for trial Before the court, and the appellant introduced her evidence in support of the allegations of her petition. At the conclusion of that evidence, respondent moved for a dismissal of the proceeding. The court granted the motion on the ground that appellant's petition constituted a contest of the earlier will and that such contest could not be maintained, because it had not been initiated within the statutory six-month period. The court thereupon entered a formal order of dismissal, from which this appeal was taken.

The principal question presented by the appeal is whether the proceeding instituted by the appellant for the probate of the later will is barred by the statute of limitations governing will contests. Upon that question, two sections of the statute require consideration.

Rem.Rev.Stat. § 1380 [P.C. § 10049], relating to applications for probate of wills, hearings thereon, and the effect of orders respecting the disposition of such applications, reads, in so far as it is matterial here, as follows:

'Applications for the probate of a will and for letters testamentary, or either, may be made to the judge of the court having jurisdiction and the court may immediately hear the proofs and either probate or reject such will as the testimony may justify. Upon such hearing the court shall make and cause to be entered a formal order, either establishing and probating such will, or refusing to establish and probate the same, and such order shall be conclusive as against all the world except in the event of a contest of such will as hereinafter provided. * * *' (Italics ours.)

It will be observed that this section of the statute does not require that notice of such hearing shall be given to anyone, but permits the probating of a will upon an ex parte application.

Rem.Rev.Stat. § 1385 [P.C. § 10017], relating to will contests and complementing § 1380, supra, provides, in part, as follows:

'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. Issue shall be made up, tried and determined in said court respecting the competency of the deceased to make a last will and testament, or respecting the execution by a deceased of such last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of such will.

' It no person shall appear within the time aforesaid, the probate or rejection of such will shall be binding and final as to all the world. * * *' (Italics ours.)

It is conceded by the appellant in this case that she did not file her petition to probate the later will until more than six months had elapsed after the probate of the earlier will. It will be noted, however, that section 1385, supra, does not specifically provide that the question of the probationary eligibility of a subsequent will shall constitute an issue to be raised and determined in a proceeding to contest an earlier will. The only specific issues required by the statute to be made up, tried, and determined in a will contest are those respecting (1) the competency of the deceased to make a will, and (2) the execution of the will by the deceased under restraint, undue influence, or fraudulent representation. Then follows the general clause 'or for any other cause affecting the validity of such will.'

The italicized portions of the sections of the statute above quoted, as applied to the conceded facts in this case constitute the basis of the respondent's contention, and of the trial court's decision, that appellant's application for probate of the later will is barred by the statute. ...