In re Findley's Estate

• Decision Date: 31 July 1939
• Docket Number: 27174.
• Citation: 93 P.2d 318,199 Wash. 669
• Court: Washington Supreme Court
• Parties: In re FINDLEY'S ESTATE. v. FINDLEY. FINDLEY

93 P.2d 318

199 Wash. 669

In re FINDLEY'S ESTATE.

FINDLEY v. FINDLEY.

No. 27174.

Supreme Court of Washington

July 31, 1939

Department 1.

Proceeding in the matter of the estate of Clarence S. Findley, deceased by William J. Findley against Ida L. Findley, administratrix and Ida L. Findley, individually, to establish an alleged lost or destroyed will, and codicil, and for probate of such will and codicil. From judgment of court commissioner and decree of superior court refusing to admit the offered will and codicil to probate and dismissing the petition petitioner appeals.

Judgment and decree affirmed.

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

Hubbert & Mullins, of Yakima, for appellant.

Lee C. Delle and Richards, Conklin & Delle, all of Yakima, for respondent.

ROBINSON Justice.

This is the second appeal growing out of litigation concerning the estate of Clarence S. Findley, deceased. To avoid repetition, familiarity with the facts recited in the opinion rendered on the first appeal ( Findley v. Findley, 193 Wash. 41, 74 P.2d 490) will be assumed. While that appeal was pending, William J. Findley filed a petition for the probate of the will of Clarence S. Findley, alleging that he had left such an instrument, dated July 14, 1931, with a codicil dated October 30, 1931, and '* * * that said will and codicil were in existence at the time of the death of the deceased, but that your petitioner has been unable to discover and find said will and codicil; that the same has been lost or has been destroyed, and your petitioner now offers a carbon copy of said will for probate; * * *'

Rem.Rev.Stat. § 1390, provides, in part, as follows:

'Whenever any will be lost or destroyed, the superior court shall have power to take proof of the execution and validity of such will and to establish the same, notice to all persons interested having been first given. Such proof shall be reduced to writing and signed by the witnesses and filed with the clerk of court.

' No will shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions shall be clearly and distinctly proved by at least two witnesses, and when any such will shall be so established, the provisions thereof shall be distinctly stated in the judgment establishing it, and such judgment shall be recorded as wills are required to be recorded. * * *' (Italics ours.)

Upon the filing of the petition, court commissioner Milroy set a date for hearing, and directed that notice be given as required by law. Such notice was given, and the petitioner further issued a formal citation to Ida L. Findley, who then held the custody of the assets of the estate, having been the duly appointed, qualified, and acting administratrix thereof for more than five years. Mrs. Findley filed an answer and objection to the petition, consisting of denials supported by certain affirmative matter designed to raise an estoppel. The petitioner contended that this converted the proceedings, which, admittedly, began under Rem.Rev.Stat. § 1390, into a will contest under section 1385 et seq., and that, this being the case, the matter could not rightfully proceed unless and until Mrs. Findley issued the citations required by section 1386. As appellant here, he assigns as error that she was permitted to offer evidence without so doing. But it is clear that the persons who are required to issue citations by section 1386 are those filing the classes of petition referred to in section 1385; that is, petitions contesting a will already admitted to probate or seeking to prove a will which had been formerly rejected. Mrs. Findley was not attempting to contest a will which had been probated, nor was she attempting to have a will probated which had been rejected. Neither was she a volunteer in an ex parte proceeding.

The case of In re Larson's Estate, 187 wash. 183, 60 P.2d 19, so much relied on by the appellant, is not at all apposite. Mrs. Findley was not only brought into the matter by a formal citation issued at the request of the appellant, but she was properly a party independent of that, since she, as administratrix of the estate, was lawfully in possession of its assets and charged with their preservation and lawful distribution. She had a right to require the petitioning proponent to prove his case. In our opinion, the fact that, in resisting the petition, she did not confine herself to mere denials, did not bring the proceedings within the purview of Rem.Rev.Stat. § 1385 et seq. The court commissioner, in the first instance, rightly treated the matter as a proceeding brought under section 1390 to establish a lost will, and the hearing was so conducted throughout, and not as a will contest.

During the course of the hearing, Ida L. Findley was permitted to testify to certain conversations with the deceased. This is assigned as error. But we have heretofore held that Rem.Rev.Stat. § 1211, excluding the giving of evidence of transactions with persons since deceased by parties interested or to the record, is not applicable to a will contest or to the probate of a will. In re Anderson's Estate, 114 Wash. 591, 195 P. 994; In re Zelinsky's Estate, 130 Wash. 165, 227 P. 507. The opinion in Jones v. Peabody, ...