In re Kane's Estate

• Decision Date: 14 February 1944
• Docket Number: 29151.
• Citation: 145 P.2d 893,20 Wn.2d 76
• Court: Washington Supreme Court
• Parties: In re KANE'S ESTATE. v. MILLER. MILLER et al.

145 P.2d 893

20 Wn.2d 76

In re KANE'S ESTATE.

MILLER et al. v. MILLER.

No. 29151.

Supreme Court of Washington

February 14, 1944

Department 1.

Action by Edmond Lewis Miller and others against Fred V. Miller, as executor of the last will of Ida Kane, deceased, to contest the will of deceased on ground of mental incapacity and undue influence. From a decree upholding the validity of the will and determining the interest of the parties involved in and to certain real property, and allowing attorney fees to contestants, the executor appeals, and contestants cross-appeal.

Reversed and remanded, on the appeal of executor, with instructions.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

George Olson and Warren Hardy, both of Seattle, for appellants.

J. A Kavaney, George G. Hannan, and Irving R. Stratton, all of Seattle, and Will Derig, of Olympia, for respondents.

JEFFERS Justice.

This proceeding involves a will contest instituted by four grandchildren of Ida Kane, deceased. Mrs. Kane died in King county, Washington, on September 6, 1942, leaving as her only heirs a son, Fred V. Miller, and four grandchildren, Edmond Lewis Miller, of lawful age, Robert Gordon Miller, Howard Russell Miller and Eva Joan Miller, minors, the children of E.

Clarence Miller, deceased. Fred and Clarence Miller were sons of Ida Kane by a prior marriage.

The action was brought by Edmond Miller and Eva May Miller mother and guardian ad litem of Robert, Howard and Eva Joan Miller, minors, for the purpose of contesting a certain instrument executed by Ida Kane on September 20, 1941 purporting to be her last will and testament. This will was filed in the office of the clerk of King County on September 17, 1942, and provides:

'First. Having in mind my grandchildren, Eddie Miller, Robert Miller, Russell Miller and Joan Miller, I give, devise and bequeath all of my property to my son, Fred V. Miller, and I appoint as executor and trustee of my estate, said Fred V. Miller, or such person or corporation as he shall select to be executor and trustee.

'Second. I direct that my executor and trustee serve without bond, and have full power to sell and dispose of my property, and that my estate be probated without the intervention or supervision of any court, as provided by the laws of this state relative to nonintervention wills.

'In Witness Whereof, I have hereunto set my hand and seal this 20th day of September, 1941.

'(Signed) Ida Kane (x) her mark.'

The subscribing witnesses to this will are Alfred H. Lundin, who prepared it, and Doctor D. Henry McChesney, who attended Mrs. Kane during her last illness.

On September 17, 1942, Fred v. Miller presented the above will for probate, and thereafter, on September 25, 1942, an order was made and entered admitting the will to probate and appointing Fred Miller as executor thereof. Mr. Miller qualified as such executor, and thereafter filed an inventory showing the estate to consist of lot 6, block 44, Pontius Second supplemental addition to the city of Seattle, appraised, with improvements, at $28,000; furniture, fixtures, etc., in the apartment house located on such property, appraised at $900; cash on hand, $137; making a total appraised value of the estate, $29,037.

We feel it necessary to make a somewhat extended statement of the facts in this case, in order that a better understanding may be had of the contentions of the parties, notwithstanding the conclusions we have reached.

The petition to contest was based upon two specific grounds, numely, mental incapacity of Ida Kane, and undue influence on the part of Fred Miller.

It appears from the testimony that the real estate above mentioned, upon which is located the Elmondo apartments, had at various times since its acquisition by Mrs. Kane been carried on the records in the name of Fred Miller or Clarence Miller. However, no deed or deeds are in the record showing a conveyance from the mother to either one of her sons. On August 7, 1928, according to the testimony, title to the property stood in the name of the son, Fred V. Miller, who at that time resided in Los Angeles. On the date last mentioned, Fred Miller, at the request of his mother, made, executed and delivered to his brother Clarence a deed to the property. The witnesses refer to this deed as conveying to Clarence an undivided one-half interest in the property. While the deed was not introduced in evidence, it was read into the record, and as appears therefrom, it purported to be a warranty deed. We quote from the record: "The grantor, Fred V. Miller, single, of Los Angeles, California, for and in consideration of Ten Dollars, and other valuable consideration, to me in hand paid, conveys and warrants to E. Clarence Miller, of Seattle, King County, Washington, the following described real estate, to-wit, Lot 6, block 44, Pontius Second Supplemental Addition to the City of Seattle. Lot 4, block 2, McNaughts Addition to Seattle."

Clarence Miller died in April, 1939, and his estate was probated. The record in that probate is not in evidence, but from the testimony it appears that, based upon the record showing the deed from Fred to Clarence, the above property was inventoried in the estate of Clarence Miller. However, Mrs. Miller, Clarence Miller's widow and mother of these contestants, testified that they had never claimed that they were the owners of more than an undivided one-half interest in and to the property.

On October 17, 1939, which was after the death of Clarence Miller, Fred Miller, by quitclaim deed, conveyed this property to his mother, Ida Kane. In the testimony this last deed is referred to as conveying an undivided one-half interest, but the deed purports to convey all the interest Fred had in the property.

In so far as the record shows, at the time Ida Kane executed this will, on September 20, 1941, there was on record a warranty deed from Fred Miller to Clarence Miller, dated August 7, 1928, and a quitclaim deed from Fred Miller to his mother, dated October 17, 1939. It further appears from the testimony, the record itself not being in evidence, that sometime Before the death of Ida Kane, and after she had made the above will, she started an action in the superior court for the purpose of obtaining a judgment adjudication that the deed from Fred to Clarence Miller, dated August 7, 1928, was in fact a trust deed, and that Clarence held the property in trust for her. This action was pending at the time this contest was started, Fred Miller having been substituted for his mother as party plaintiff.

Apparently since the appointment and qualification of Fred Miller as executor, he has had control of the apartment house and the rents received therefrom.

After the suit last mentioned was started, contestants became alarmed that if Fred was successful in having the deed to Clarence declared to be a trust deed, he would then contend that under the will he was entitled to all his mother's property, to the exclusion of these contestants. Under this condition of affairs, contestants started this suit. The trial court was informed of the action then pending, in which it was sought to have the deed to Clarence declared to be a trust deed.

There was a great deal of testimony introduced pertaining to Ida Kane's intent in making the will, and what she intended to convey thereby. Alfred Lundin, who drew the will, and who had known Mrs. Kane for some years, was called as a witness by contestants, and testified that in his opinion Ida Kane was mentally competent to make a will at the time this will was executed; that the will was read to Mrs. Kane Before it was signed, and she indicated that it expressed her wishes. The will was prepared by Mr. Lundin after he had talked with Doctor McChesney relative to Mrs. Kane's condition, and, as hereinBefore indicated, Doctor McChesney was present when the will was read to Mrs. Kane and when she signed it. It is true that at the time Mr. Lundin prepared the will he understood, from previous conversations with Mrs. Kane, that it was her intention upon her death to leave one-half of all her property to each of her sons, Clarence and Fred, and it being his understanding that by the deed of August 7, 1928, Fred had conveyed a half-interest in the property to Clarence, Mr. Lundin was convinced that at the time the will was made, Mrs. Kane held title to only an undivided one-half interest by virtue of the deed of October 17, 1939, from Fred to her. This being the condition of the record as Mr. Lundin understood it, he drew the will believing that thereby Mrs. Kane was bequeathing to Fred the one-half interest still in her name.

Doctor McChesney, called by contestants, also testified that in his opinion Ida Kane, at the time the will was executed, was mentally competent to make a will; that the will was read to her Before she signed it, and she indicated that it expressed her desires. Mrs. Kane had had a stroke some time Before the will was executed, but, as stated, Doctor McChesney, who attended her at that time and subsequently, testified she was mentally competent.

The evidence so conclusively shows that Mrs. Kane was mentally competent to make a will, that no further recitation of the testimony will be made. In our opinion, there is no testimony which tends to show that Mrs. Kane was unduly influenced by Fred Miller to make the will.

At the close of contestants' case, counsel for Fred Miller challenged the sufficiency of the evidence and moved for a nonsuit and dismissal of the action. The trial court denied this motion. At the close of all the testimony, Fred Miller renewed his challenge to the sufficiency of the evidence to support the allegations of the petition to contest. This motion was also denied.

The trial...