In re Martinson's Estate

• Citation: 29 Wn.2d 912,190 P.2d 96
• Decision Date: 02 March 1948
• Docket Number: 30311.
• Court: United States State Supreme Court of Washington
• Parties: In re MARTINSON'S ESTATE.

190 P.2d 96

29 Wn.2d 912

In re MARTINSON'S ESTATE.

No. 30311.

Supreme Court of Washington

March 2, 1948

Department 1

Proceeding in the matter of the estate of Simon Martinson, also known as Simeon Martinson, deceased, wherein validity of will was contested by brothers and sisters of deceased. From a judgment dismissing the contest, the contestants appeal.

Affirmed.

Appeal from Superior Court, King County; Chester A Batchelor, Judge.

Wright Booth & Beresford, of Seattle, for appellants.

Lenihan & Ivers, of Seattle, for respondent.

SIMPSON Justice.

Simon Martinson, late of King County, died testate March 13, 1945 leaving as his sole heirs at law six brothers and three sisters. At the time of his death he was sixty-four years of age. By the terms of his will, executed January 6, 1945, his property was bequeathed to Mrs. Reland Earnest. The validity of the will was confested by all of the brothers and sisters of the deceased. They contended that the will was produced by undue influence exercised over him at, and Before , the time of its execution.

After a trial to the court, sitting without a jury, the court made its findings of fact and conclusions of law, and based thereon, entered its judgment dismissing the contest action.

The contestants, on appeal to this court, contend that the trial court committed error in the making and entering its findings, in makings its conclusions of law, and in making and entering its judgment dismissing the petitioners' contest of the purported last will and testament. Each assignment of error is predicated upon the question of whether undue influence was exerted upon Simon Martinson by Reland Earnest and those acting with her.

Before referring to the evidence introduced in this case, it seems advisable to set out certain rules of law governing the contest of wills based upon claims of undue influence, which have been adopted by this court.

The right of testamentary disposition of one's property as an incident of ownership, is by law made absolute. It is a valuable right, closely protected by statute and judicial opinion. If a will has been executed with all legal formalities requisite to the validity of the instrument and has been admitted to probate, our statute, Rem.Rev. Stat. § 1387, imposes upon those who contest its legal force, the burden of proving invalidity by evidence that is clear, cogent, and convincing. In re Geissler's Estate, 104 Wash. 452, 177 P. 330; In re Roy's Estate, 113 Wash. 277, 193 P. 682; In re Johanson's Estate, 178 Wash. 628, 35 P.2d 52; In re Larsen's Estate, 191 Wash. 257, 71 P.2d 47; Dean v. Jordan, 194 Wash. 661, 79 P.2d 331; In re Schaefer's Estate, 8 Wash.2d 517, 113 P.2d 41; In re Miller's Estate, 10 Wash.2d 258, 116 P.2d 526; and, In re Bottger's Estate, 14 Wash.2d 676, 129 P.2d 518.

In order to have a will set aside on the grounds that its execution was produced by undue influence, it must be shown that the influence exerted was such as overcame the will of the testator. To put it in other words, the influence must have destroyed the free will of the testator so that the will spoke the intent and desire of the one exerting the influence, and not the intent and desire of the testator. Roe v. Duty, 115 Wash. 313, 197 P. 47; In re Seattle's Estate, 138 Wash. 656, 244 P. 964; and, In re Riley's Estate, 163 Wash. 119, 300 P. 159.

Legal definitions of the term 'undue influence' cannot be given that will serve as a safe and reliable test for every case. Each case depends to a very large extent upon the facts presented to the court. However, not every influence exerted over a person can be denominated undue influence. Generally speaking, influence exerted by means of advice, arguments, persuasions, solicitations, suggestions, or entreaties, is not undue influence, unless it be so importunate, persistent, or coercive, or otherwise so operates as to subdue and subordinate the will of the testator and take away his freedom of action. In re Patterson's Estate, 68 Wash. 377, 123 P. 515; In re Tresidder's Estate, 70 Wash. 15, 125 P. 1034; In re Adams' Estate, 120 Wash. 189, 206 P. 947; In re Zelinsky's Estate, 130 Wash. 165, 227 P. 507; and, In re Bottger's Estate, 14 Wash.2d 676, 129 P.2d 518.

From the very nature of cases of undue influence, the evidence is mainly circumstantial, so that a liberal scope of investigation is allowable. Undue influence is not usually exercised openly in the presence of others so that it can be directly proved, but the circumstances relied upon to show it must be such as will, if taken together, point unmistakably and convincingly to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter and not the former. In re Tresidder's Estate, 70 Wash. 15, 125 P. 1034. While, as stated in the cited case, there is no uniform rule capable of application apart from the facts of each case, yet courts must in each case apply the general rules which appear in the cases just cited.

The evidence is voluminous, and we do not feel it necessary to discuss it in detail, but will only refer to those portions which counsel for the respective parties insist control the disposition in this case.

Martinson was a man of limited education. Just prior to the death of his wife, September 15, 1934, his sister-in-law, Ida M. Anderson came from Minnesota to be with her sister. After the death of Mrs. Martinson, Mrs. Anderson remained in Seattle and kept house for her brother-in-law until she suffered an automobile accident and was sent to a hospital. While in the hospital she met Reland Earnest, who, through Mrs. Anderson, met Mr. Martinson. Reland Earnest was married at the time. Thereafter, Mr. Martinson visited Mr. and Mrs. Earnest at their home, and on several occasions remained there over night. The evidence of the contestants tended to prove the following facts: 'Shortly after his contact with Mrs. Earnest, Mr. Martinson commenced drinking to excess. He discontinued his contacts with friends of many years, and also ceased visiting his brothers and sisters. Mr. Martinson expressed the wish that he could rid himself of Mrs. Earnest. He was very found of his home, but under the influence of Mrs. Earnest, moved to her home where they lived together as husband and wife. January 6, 1945, Mrs. Earnest called Robert Anderson, who had been the attorney for Mr. Martinson at the time his wife's estate was probated, and asked him to draw a will for Mr. Martinson, leaving all of his property to her. Mr. Anderson prepared the will as requested, and took it to Mr. Martinson at Mrs. Earnest's home. Present in the bedroom where the will was signed, was Mrs. Earnest, and her daughter, Reland Michael. Mr. Anderson asked Mr. Martinson if he desired to make the will and received an affirmative answer. The situation is best presented by the testimony of Mr. Anderson:

'A. * * * And then Mr. Martinson did not seem to understand it, or hesitated, and so Mrs. Earnest made the statement to him in effect, 'This is what we have considered', or something like that; that it was giving her his property, which she understood he was to do, and then I went into it a little more definitely and explained each of the terms of the will to him, and asked him whether he wanted Mrs. Reland Earnest appointed executrix of it, and he indicated he did, and I told him this was giving all of his property to Mrs. Earnest and that it was a non-intervention will and she was to act without bonds. That was the substance of what I told him.

'And I asked him if he wanted to make that will. I think he said 'Yes', or indicated he did.

'Q. Did he read the will? A. He did not read the will himself.

'Q. I think you have said that Mrs. Earnest was present there in the room all the time? A. Yes.

'Q. Is there anything that is contained in that will---- A. Just a minute, Counsel. I think I read it to him again after these words were added. I read it to him a couple of times.

'Q. You say at first he was hesitant about signing? A. He was hesitant. I don't know why. Apparently, from the looks of him, he was a little puzzled.

'Q. Did that hesitancy exist Before you inserted this provision in longhand, or was that afterwards? A. That was afterwards.

'Q. That he was still hesitant. Did you say she said something to him? A. She said, 'This will provides according to our understanding'--I think those were the words that were used--'That you were to give all your property to me--will all of your property to me.'

'Q. Who was in the room? A. Reland Earnest and her daughter and myself.

'Q. And Mr. Martinson? A. Surely; Mr. Martinson.

'Q. Is there any provision in this will or any provision contained in it that you placed therein at his direction? A. No.

'Q. You witnessed the will? A. Yes, sir.

'Q. Who was the other witness? A. Reland Michael.

'Q. She was the daughter of Mrs. Earnest? A. Yes, sir.'

Mr. Martinson was taken to the hospital the day the will was executed. While there, his brother, P. A Martinson, attempted to visit him, but was not allowed to do so except in the presence of Mrs. Earnest. The brother suggested that Mr. Martinson go to the home of his sister in Bellingham, but Mrs. Earnest said, 'That is out. He is sick. He can't go no place.' None of his relatives suceeded in seeing Mr. Martinson without Mrs. Earnest being present. One witness, Mrs. Florence C. Wunsch, who testified by deposition, lived at one time in the same house with Mrs. Earnest. Her evidence showed that Mr. Martinson and Mrs. Earnest occupied the same bedroom for some time. Mrs. Earnest explained that she and Mr. Martinson had been secretly married. Mr. Martinson obeyed any suggestion made by Mrs. Earnest. Several times Mrs....