In re Johnson's Estate

• Decision Date: 15 May 1944
• Docket Number: 29154.
• Citation: 148 P.2d 962,20 Wn.2d 628
• Court: Washington Supreme Court
• Parties: In re JOHNSON'S ESTATE. v. FARLEY et al. McGIRR

148 P.2d 962

20 Wn.2d 628

In re JOHNSON'S ESTATE.

McGIRR v. FARLEY et al.

No. 29154.

Supreme Court of Washington, En Banc.

May 15, 1944

Rehearing Denied June 22, 1944.

Proceeding in the matter of the estate of William H. Johnson, deceased. A will contest was filed by Viola McGirr against Darrel Farley and the Old National Bank of Spokane. From an order dismissing the will contest, the contestant appeals.

Order reversed with instructions to sustain the contest.

GRADY MILLARD, ROBINSON, and MALLERY, JJ., dissenting.

Appeal from Superior Court, Grant County; W. M. Nevins, judge.

D. R Glasgow, of Spokane, for appellant.

Richard S. Munter and Justin C. Maloney, both of Spokane, for respondent.

BEALS Justice.

The late William H. Johnson was a pioneer landowner in the portion of Grant county north the town of Hartline. His wife whom he married late in life, died in 1933. He had no children. In August, 1942, Mr. Johnson was about eighty years of age, and owned five quarter sections of good wheat land, and other land which was used as pasture. The balance of his property, which totaled over $100,000 in value, consisted of cash and securities. For many years prior to his death, Mr. Johnson had passed most of his time in California, and had leased his farm on a share crop basis to an old friend of his, Roy Farley, whose son Darrel assisted in the farming operations. About 1937, Roy Farley ceased to farm the properties, and his son Darrel farmed the land under a lease from Mr. Johnson.

It was Mr. Johnson's custom to visit his farm in August of each year, to oversee matters and attend to the sale of his share of the crop. After his wife's death, Mr. Johnson generally made these trips alone; sometimes, however, he was accompanied by his wife's sister, Ora Martin, who was by profession a trained nurse, and who afforded Mr. Johnson such care as his age and ill health rendered necessary.

Early in August, Mr. Johnson left his California home, intending to make his annual visit to his farm. On this occasion his sister-in-law did not accompany him. He stopped in Portland en route, where he suffered a stroke, from which he apparently recovered and continued his trip. When he reached Hartline he appeared to be normal, and obtained a room at a hotel operated by his old friends, Mr. and Mrs. Fred Hoff.

On the morning of August 18th, while eating breakfast, he suffered another stroke. Mr. and Mrs. Hoff assisted him to his room and put him to bed, but shortly thereafter he recovered sufficiently to go to the dining room and finish his breakfast, conversing without much difficulty with his friends. A physician residing in a nearby town was summoned, and in the courts of the afternoon examined Mr. Johnson, stating his opinion that by the next morning he would feel better. However, during the evening and the following night, Mr. Johnson's condition grew gradually worse. His speech became think, and Before morning was unintelligible. His strength failed, and his right side became paralyzed. Roy Farley was summoned, and remained with Mr. Johnson during the night. The doctor who had attended him earlier in the day recommended that he be sent to a hospital in Spokane and placed under the care of Dr. J. W. D. Lynch.

During the morning of August 19th, Messrs. Farley and Hoff took Mr. Johnson to the Deaconess hospital in Spokane, where he remained until his death, which occurred August 31st following. When he entered the hospital, Mr. Johnson had completely lost the power of speech, which he never regained. Roy Farley remained in Spokane for several days, paying frequent visits to the invalid. While Mr. Johnson was in the hospital his condition required the continual service of a nurse, and three nurses were assigned to his care, serving eight hour shifts. Upon Mr. Johnson's arrival at the hospital, Dr. Lynch was summoned, and took charge of the case, remaining in attendance until Mr. Johnson's death.

August 20th, Roy Farley, realizing that Mr. Johnson's condition was critical, notified Miss Martin, at her home in Riverside, California, and she at once left for Spokane, where she arrived on the morning of August 22d.

October 28, 1937, Mr. Johnson had executed his will. At this time he was a widower, both his parents were dead, and he stated in his will that he had never had a child. By his will he established a trust fund of $12,000 for the beneft of his brother, George W. Dibblee, the fund at the death of his brother to go to the brother's daughter, the testator's niece, Viola McGirr. He bequeathed to his 'relative and friend,' referred to in the record as his niece, I. Tillie Shaw, of Boston, $3,000, to his sister-in-law, Ora L. Martin, $7,000, devising all the remainder of his estate to his niece, Viola McGirr, a resident of Massachusetts. The Old National Bank of Spokane was named executor.

It appears that Mr. Johnson had not been in close contract with any of the relatives whom he named as beneficiaries under his will, but it also clearly appears that he had for them a high regard, as not long Before his death he sent his niece, Viola McGirr, a five thousand dollar bond, sending also a bond of considerable value to Tillie Shaw.

During the course of the evening of August 21st, Roy Farley, who had been visiting the invalid, informed the nurse then in attendance, Margaret Devitt, that he believed that Mr. Johnson was trying to communicate some wish. It appears that much of the time the sick man was restless and mumbled as though endeavoring to express some thought to those in attendance. At the hearing, Mr. Farley testified that when he approached close to Mr. Johnson in an effort to understand what the latter was trying to say, he though he heard the word 'Darrel,' the name of Roy Farley's son. Mr. Farley stated that he then asked Mr. Johnson questions, and that Mr. Johnson would in reply nod affirmatively or shake his head negatively, thereby indicating his response to the questions asked. By this process, Mr. Farley gained the impression that Mr. Johnson wished to give Darrel Farley something, and at length Mr. Farley and also Mrs. Devitt obtained the impression that Mr. Johnson desired to make a change in his will. Mr. Farley, after several attempts to procure the attendance of a lawyer, called Mr. H. M. Hamblen, a member of the bar of this court, who went to the hospital, and was taken to Mr. Johnsons room. There, by a series of questions, most of which were propounded by Farley, and to which the sick man responded by an affirmative or negative movement of his head, it was concluded that the testator desired to leave two of his five quarter sections of land to Darrel Farley and the other three to Viola McGirr, Darrel Farley to select the two which he preferred. It appears that the question propounded to the testator were carefully framed, in the endeavor to eliminate possibility of error in ascertaining the testator's wishes.

Mrs. Devitt testified that the questioning period lasted from fifteen to twenty minutes, and Mr. Hamblen testified that the entire length of his visit was from twenty to twenty-five minutes. After the questions had been propounded and answered, as above stated, Mr. Hamblen reduced to writing what he understood the testator's wishes to be, in the form of a codicil reading as follows:

'I, William H. Johnson, of Hartline, Washington and Riverside, California, do make this codicil to my last will----

'First: I own five quarters of land in Grant county, Washington. I want Darrel Farley to have two quarters and my niece to have three quarters and I hereby give and devise said land to said parties accordingly. Darrel Farley is [to] select the two quarters which he wishes and my niece shall have the other three. 'In witness whereof I have set my hand this 21st day of August, 1942.

'W. H. Johnson

'Witnesses: Margaret Roberts Devitt R. N.

H. M. Hamblen'.

The nurse held Mr. Johnson's hand, assisting him to write his name, and then, with Mr. Hamblen, witnessed the codicil. In writing Mr. Johnson's name, it was erroneously spelled Johnston, the correct last name being written beneath.

It appears that after the codicil was executed, the sick man endeavored to convey to those present in his room some other idea, but it was impossible by questions or otherwise to ascertain what Mr. Johnson wanted. Dr. Lynch was not notified that it was proposed to assist Mr. Johnson in executing the codicil, nor was he informed that the same had been executed until after the death of the testator.

In due time the executor offered the will and codicil for probate, the executor's attorney stating to the court that he had some doubts as to the validity of the codicil. In view of this state of facts, the court instructed the executor to give notice to all interested parties, advising them of the time and place when the will and codicil would be offered for probate. The parties accordingly appeared by counsel, Dr. Lynch and Mr. Hamblen were present, as were two of the nurses and Roy Farley. Other witnesses were examined, and while Viola McGirr called no witnesses, her counsel cross-examined those witnesses who testified.

At the beginning of the hearing there was considerable discussion between court and counsel as to the effect of the proceeding with particular reference to the question of whether or not, after such a hearing, an order admitting the will to probate would amount to a final adjudication upon the question of the testamentary capacity of Mr. Johnson counsel for Viola McGirr contending that the proceeding was ex parte, the parties appearing merely as friends of the court. The court expressed no definite view, and the hearing proceeded, as above stated. At the conclusion of the testimony, the court admitted both...