In re Fischer's Estate, 27110.

• Decision Date: 11 August 1938
• Docket Number: 27110.
• Citation: 81 P.2d 836,196 Wash. 41
• Court: Washington Supreme Court
• Parties: In re FISCHER'S ESTATE. v. SOAMES et al. FISCHER

81 P.2d 836

196 Wash. 41

In re FISCHER'S ESTATE.

FISCHER v. SOAMES et al.

No. 27110.

Supreme Court of Washington

August 11, 1938

Department 1.

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

Proceeding in the matter of the estate of Johanna L. Fischer, also known as Johanne L. Fischer, deceased, wherein Charles W. L Fischer filed a petition to have a purported last will and testament declared null and void and to enforce specifically an alleged oral contract to make mutual wills. The petition was opposed by Marie Soames and others, and from that part of a decree granting the petition with respect to the second cause of action, Marie Soames and others appeal.

Affirmed.

Eugene F. Hooper, Joseph Matsen, and Eli M. Paulson, all of Seattle for appellants.

R. W Miller, of Bremerton, for respondent.

STEINERT Chief Justice.

Respondent herein filed his petition in the superior court seeking (1) to have the purported last will and testament of his deceased wife declared null and void, and (2) to enforce specifically an alleged oral contract between the spouses wherein, according to the allegations of the petition, they agreed to pool their separate properties and to make mutual wills whereby the survivor should take the entire estate. Trial Before the court resulted in findings, conclusions and decree denying the petition as to the first cause of action, but granting it as to the second. The parties designated herein appellants have appealed from that part of the decree which is adverse to them.

Respondent, Charles W. L. Fischer, married Johanna L. Fischer on October 6, 1917. Mr. Fischer was then forty-six years of age; Mrs. Fischer was forty-two. Respondent had been married once Before , but was divorced from his former wife. By his first marriage he had one child, a daughter, who lives with her mother. Johanna L. Fischer, who had emigrated from Denmark to this country in 1914, had also been married Before , but whether she afterwards became a widow or was divorced does not appear.

At the time of the marriage of Mr. and Mrs. Fischer, respondent owned two vacant lots in Bellingham subject to taxes and assessments, an unimproved ten-acre tract near Silverdale, in Kitsap county, a contract equity representing a payment of $150 on a lot in Bremerton, and a small amount of furniture, the value of which property in the aggregate was about $1,500; Mrs. Fischer had about seven hundred dollars in cash. Shortly Before their marriage respondent gave his intended wife one hundred dollars with which to buy furniture for their home.

On November 3, 1917, the husband and wife made mutual and reciprocal nonintervention wills, by the terms of which each bequeathed and devised to the other his or her entire estate and each appointed the other executrix or executor of their respective wills. It is alleged and contended by respondent that these wills were the product of, and made pursuant to, a previous oral contract between the parties wherein they had agreed to live together as husband and wife and protect and care for each other for the rest of their natural lives, to pool their separate properties and hold them as community property, and to make mutual and reciprocal wills whereby the survivor should take and receive the entire property.

Throughout their married life Mr. and Mrs. Fischer lived in Bremerton, where Mr. Fischer was employed as a shipwright in the Puget Sound Navy Yard until his retirement on pension. Mrs. Fischer at all times did the housework and for a brief period was employed in a local tailor shop. The pay checks and earnings of the husband were all handled by the wife who kept the records and paid all household expenses out of those funds. The record discloses that she was a careful business woman.

During the early years of their life together the Fischers lived in the Bremerton property which respondent previously had purchased on contract. Improvements were made thereon, toward which Mrs. Fischer contributed four hundred dollars of her separate funds. She also contributed two hundred fifty dollars of her money toward the purchase of a secondhand automobile which was used by them as a family car. Being industrious and thrifty, the couple were increasingly prosperous.

In 1924 respondent sold the Bellingham property and realized therefrom nine hundred sixty dollars. This amount, together with accumulated funds and a loan from a bank, they invested in 1925 in the purchase of another house, which they occupied as a home, in Bremerton. The deed to this latter property was taken in the names of both husband and wife. Subsequent improvements thereon were made with community funds. The acreage near Silverdale was later conveyed by both parties, at the suggestion of Mrs. Fischer, as a gift to respondent's nephew.

Appellant Marie Soames, who resided in Seattle, was the sister of Mrs. Fischer. The families of the two sisters were on intimate terms and frequently visited each other. On November 11, 1929, Mrs. Fischer, while visiting her sister in Seattle, had a new will drawn by a lawyer who was Mrs. Soames' attorney. The will made no mention of respondent, but bequeathed two hundred dollars to a sister residing in Denmark, and devised the rest of the estate to Mrs. Soames. The sister who lived in Denmark died Before the trial of this action; appellants Helmund are her daughters. Respondent knew nothing of the later will until informed thereof by Mrs. Soames on the day that Mrs. Fischerwas buried. Mrs. Soames testified that on the day of the execution of the will it had been delivered to her safe-keeping under her strict promise to Mrs. Fischer that she would not tell respondent anything about it.

Mrs. Fischer died January 19, 1937. Shortly thereafter both of her wills were filed for probate. Respondent petitioned for probate of the first will and for his appointment as executor; Mrs. Soames petitioned for probate of the later will and for her appointment as executrix. Upon a hearing Before the court, the later will was admitted to probate, but respondent, as surviving spouse, was appointed administrator with the will annexed. The estate was inventoried and appraised at $8,050. Respondent then petitioned for family allowance and was awarded the sum of one hundred dollars per month. Shortly thereafter, however, respondent filed his present petition attacking the later will on the ground that it had been executed through fraud and undue influence on the part of appellant Soames and, in the alternative, byf way of equitable relief, asking that the oral contract already referred to be specifically enforced. A demurrer to the petition was overruled.

After a hearing on the merits, the court denied the petition as to the first cause of action, but at the same time expressed the view that in its opinion there was something wrong with the later will. The court was apparently led to that conclusion by reason of the testimony of a number of witnesses to the effect that they had heard Mrs. Fischer frequently state, both Before and after 1929, that Mrs. Soames was to have certain personal articles, such as clothing and fancy work, but that respondent was to have, under her will, all the rest of her property. That this was Mrs. Soames' understanding of the later will is partially borne out by the fact that after Mrs. Fischer's burial Mrs. Soames went to Bremerton and with the consent of respondent took a number of things of a personal nature which had belonged to her deceased sister. The court, however, held that there was not sufficient evidence to set the later will aside on the ground of fraud or undue influence.

On the second cause of action set forth in the petition the court found and held that an oral contract, as alleged by respondent, had been entered into between the spouses, that it had been fully performed by respondent, and that it, therefore, should be enforced specifically to the end that all the property, which was community property, should be vested in respondent. From this portion of the decree this appeal was taken.

Upon their assignments of error appellants make three contentions, the first being that the court erred in not sustaining the demurrer to the petition on the ground of misjoinder of causes of action. It is claimed that the two causes of action could not properly be united in the same petition because the rules of evidence applicable to the one were different from and inconsistent with those applicable to the other; that in the first cause of action evidence would be admissible which, in the second cause, would be prohibited by Rem.Rev.Stat. § 1211, relating to testimony by an interested person as to any transaction had with, or statement made to him by, a deceased person.

Conceding, for present purposes, that the two causes could not be united in the same action, the error, if any, was without prejudice and the point is now of no moment, for the reasons (1) that no evidence transgressing Rem.Rev.Stat. § 1211, was offered or admitted, and (2) that the first cause of action was dismissed and the decree, in so far as it was favorable to respondent, was based exclusively on the issues presented by the second cause.

Appellants next contend that the evidence was insufficient to establish a valid contract to make mutual irrevocable wills. This presents the principal question in the case.

In considering this question it is necessary to have in mind certain principals which this court has frequently announced and consistently followed as the law in cases of this kind.

Contracts to devise or bequeath property, although not favored in law, are nevertheless enforcible, if the terms of the contract, the intention of the parties, and the adequacy of consideration are established...