In re Kerckhof's Estate

• Decision Date: 08 May 1942
• Docket Number: 28331.
• Citation: 125 P.2d 284,13 Wn.2d 469
• Court: Washington Supreme Court
• Parties: In re KERCKHOF'S ESTATE. v. HORRIGAN et al. KERCKHOF

125 P.2d 284

13 Wn.2d 469

In re KERCKHOF'S ESTATE.

KERCKHOF v. HORRIGAN et al.

No. 28331.

Supreme Court of Washington

May 8, 1942

Department 1.

Proceedings by Louis Kerckhof against John Horrigan, as guardian ad litem and others, to establish a destroyed will. From an order denying probate, petitioner appeals.

Affirmed.

MILLARD J. dissenting.

Appeal from Superior Court, Franklin County; Matt L. Driscoll Judge.

Richard S. Munter, of Spokane, and Cameron Sherwood, of Walla Walla for appellant.

Horrigan & Horrigan, of Pasco, for respondents.

DRIVER, Justice.

On March 28, 1940, Lothaire Kerckhof was in a hospital in Pasco and about to undergo a surgical operation for a ruptured gastric ulcer. He indicated to the attending physician that he wanted to make a will, leaving five thousand dollars to his housekeeper and fiancee and the rest of his property to his brother Louis. A nurse was summoned and, under the direction of the patient, she wrote out substantially the following:

'I Lothaire Kerckhof, in settlement of my estate, will $5,000 to my fiancee, Betty Weily; the balance of my estate to go to Louis Kerckhof, my brother.'

Mr. Kerckhof then signed the writing, and two nurses and Miss Weily signed it as witnesses. On April 1st, after the operation had been performed and the patient apparently had an excellent chance of recovery, Miss Weily took the will to a Pasco attorney to get an opinion as to its validity. Later the same day, she asked him to come to the hospital, and, there, Mr. Kerckhof informed him that he wanted to give Miss Weily a check for five thousand dollars in lieu of the bequest in the will, and that he desired all the rest of his estate to go to his brother Louis. As to what then transpired, we quote from the attorney's testimony at the hearing on the petition to probate the will, as follows:

'A. * * * I suggested to Mr. Kerckhof that we prepare a new will providing that all his estate should go to his brother, Louis. He asked why that was necessary and I told him I would have to have further facts Before I could advise him whether a will would be necessary. I asked whether his father and mother were living, and he said no, they were not. I asked if he had any brothers and sisters other than Louis, and he said, 'No, I have not.' I asked him whether there were any children of possible deceased brothers and sisters, and he said, 'No.' And so finally I asked, 'You have no children?' and he said, 'No, I have no children.'

'I said, 'Are there any other relations?' and he said 'No.' So I told him under the circumstances, since there were no other relatives other than Louis, that Louis was his only heir and it wouldn't be necessary to draw a will because of the fact that his brother would inherit the entire estate. I said, 'If you don't feel up to making a will, just better leave things as they are.' I then suggested to him inasmuch as this will contained a bequest of $5,000 and that there might be a possibility of her claiming another $5,000--he had made it very evident that $5,000 was all he wished her to have; he wanted his brother to have the balance--I suggested under the circumstances the best thing to do was to destroy the will. I asked him to direct me to destroy it by tearing it, and he did that. I tore it up and deposited it in the wastebasket.'

On cross-examination, the attorney testified:

'Q. And then just what was said to lead up--I know you have gone thoroughly into the question of other heirs--but to lead up to the destruction of the will? What purpose, if any, did he express? A. He didn't express any purpose. I just merely told him that in view of the fact that there was this possibility of her claiming another $5,000, and his expression to me that that was all he wanted her to have and that he wanted the brother Louis to inherit the balance of the estate, he had better direct me to destroy the will. What he was trying to get at was to avoid any possibility of her receiving another $5,000.

Q. And which he did order you to destroy and you did destroy it? A. Yes.

'Q. There was nothing said on his part to indicate that you were only to partially destroy the will? A. No.

'Q. It was clearly a command to destroy the will? A. He said, 'Go ahead,' so I tore it in three pieces.'

On April 2nd, Miss Weily cashed the five-thousand-dollar check and disappeared. Lothaire Kerckhof developed post-operative peritonitis and died on April 4th.

As a matter of fact, his brother Louis was not his only living relative. He had a number of brothers and sisters residing in Belgium, but it is not definitely known how many of them survived him. He had not communicated with any of them for about nine years, and it has not been possible to get in touch with them since his death because of war conditions. Louis has reisded in Walla Walla county for many years, and his relations with the decedent had been intimate and very friendly.

Louis Kerckhof petitioned for the probate of the destroyed will. A hearing Before the court resulted in an order denying admission of the will to probate and appointing an administrator. The petitioner appealed. The respondents are the administrator and a guardian ad litem appointed for any of the European heirs who may be under legal disability.

Rem.Rev.Stat. § 1398, reads: 'No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked except by a subsequent will in writing, or by burning, canceling, tearing, or obliterating the same, by the testator or testatrix, or in his or her presence, by his or her consent or direction.'

It can readily be seen that a strict and literal application of the statute would impel the conclusion that the will of Lothaire Kerckhof was revoked. It was torn up and destroyed in the presence of the testator with his consent and at his direction. It is appellant's contention, however, that the will was not effectually revoked for the reason that, under the circumstances, the doctrine of dependent relative revocation applies. A widely accepted and frequently quoted definition of the doctrine appears in an Annotation in 62 A.L.R. 1367, subd. VII, 1401, and is reiterated in a later supplemental Annotation, 115 A.L.R. 710, 721:

'When a will, or portions thereof, are canceled or mutilated in order to change the will in whole or in part, and the attempt fails for want of due authentication, or other cause, this effort to revoke in whole or in part will be treated as relative and dependent upon the efficacy of the new disposition intended to be substituted; and hence, if the attempted disposition is inoperative, the revocation fails also, and the original will remains in force. This rule is styled the doctrine of dependent relative revocation. It is based upon the presumption that the testator performed the act of revocation with a view and for the purpose of making some other disposition of his property in place of that which was canceled, and that there is, therefore, no reason to suppose that he would have made the change if he had been aware that it would have been wholly futile, but that his wishes with regard to his property, as expressed in his original will, would have remained unchanged, in the absence of any known and sufficient reason for changing them.'

The rule, it will be noted, is essentially one of presumed intention. The courts, apparently out of a desire to give effect to the intention of the testator, have presumed that he would have prefered the will which he had canceled or mutilated to the intestacy brought about by the unforeseen thwarting of the attempted later alternative disposition.

Very briefly, the rationale of the doctrine is this: To effect the revocation of a will, two elements are essential, an overt act and animus revocandi; and there can be no real intention to revoke when the act of destruction or cancellation is induced and motivated by a mental misconception of the effect of the act on account of ignorance, or mistake, or some other error. The doctrine has been a fruitful source of controversy both in and out of the courts, and there is a wealth of expository material available. See articles in 2 Va.L.Rev. 327; 22 Harvard L.Rev. 374; 33 Harvard L.Rev. 337; 23 Ky.L.Jour. 559; 50 Yale L.Jour. 518; 5 So.Cal.L.Rev. 273, 398. The cases are extensively reviewed in the two A.L.R. Annotations above mentioned.

In the present case, the testator did not destroy his will because he intended to make, or had attempted to make, another one. It was his deliberate purpose to refrain from making any alternative testamentary disposition of his property, but that purpose was based upon a misunderstanding of the effect of the law of descent and distribution in his situation, or in what he apparently conceived his situation to be.

An English court has applied the doctrine of dependent relative revocation to just such a state of facts in In re Southerden, 133 (N.S.) Law Times Reports, 505. A will provided that the testator's wife should take all of his property. Acting upon the erroneous assumption that it would all go to her anyway if he died intestate, the testator destroyed the will by burning it. The English court of appeal held that there had been no valid revocation for the reason that the requisite intention to revoke was wanting, and that the executors of the will were entitled to a grant of probate.

However appellant has cited no decision of an American court that has gone so far. The nearest approach to it probably is Flanders v. White, 142 Or. 375, 18 P.2d 823, decided by the supreme court of Oregon in 1933. There, the testator had been informed that it would cost more than fifteen thousand dollars to probate and administer his estate under his will. In an effort to...