In re McCombs' Estate

• Decision Date: 03 September 1931
• Docket Number: 23125.
• Citation: 164 Wash. 339,2 P.2d 692
• Court: Washington Supreme Court
• Parties: In re McCOMBS' ESTATE. v. PALMER et al. McCOMBS et al.

2 P.2d 692

164 Wash. 339

In re McCOMBS' ESTATE.

McCOMBS et al. v. PALMER et al.

No. 23125.

Supreme Court of Washington

September 3, 1931

Department 2.

Appeal from Superior Court, King County; Wm. J. Steinert, Judge.

In the matter of the estate of Josephine L. McCombs, deceased. Will contest by Roland D. McCombs, individually, and as guardian ad litem for James Roland McCombs, a minor, and others against E. B. Palmer, individually, and as executor of the estate of Josephine L. McCombs, deceased, and another. From a decree upholding the will and codicil thereto and dismissing the contest, contestants appeal.

Affirmed.

Florence Mayne Hickey and Schwellenbach & Merrick, all of Seattle, for appellants.

Thos M. Askren and S.W. Brethorst, both of Seattle, for respondents.

BEALS J.

This is an attack upon the will of the late Josephine L. McCombs waged by her son, Roland D. McCombs, individually and as guardian ad litem for his minor son, James Roland McCombs, by Pearl McCombs Clark, daughter of the testatrix, individually and as guardian ad litem for her minor daughter, Elizabeth Clark, and by Denny Clark, son of Pearl McCombs Clark. The respondents in this proceeding are E. B. Palmer, individually and as executor of the last will and testament of Josephine L. McCombs, deceased, and (John) Marshall Maggs.

A brief statement concerning the family of the testatrix and of several transactions between them is necessary to a proper understanding of the issues. Samuel Denny, a pioneer of King county, January 1, 1873, conveyed to his daughter, Josephine L. McCombs, and her husband, James McCombs, a tract of land approximately 154 acres in extent, lying a few miles north of the present limits of the city of Seattle. During the year 1892, Mr. and Mrs. McCombs took up their residence on this property, where they lived during the remainder of their lives. Mr. and Mrs. McCombs had four children: Frank, born in 1873; Roland D., born in 1876; Pearl, born in 1879 (married Everett C. Clark); and Thomas H., born in 1881. Frank left home early and disappeared, with him we are nowise concerned; Roland left home during or prior to his seventeenth year, later marrying and establishing his own home; Pearl married during her twenty-first year, and after her marriage did not reside with her parents; Thomas H., or Tom., as he was called, never married, but lived with his parents until his father's death, and after that resided on the home place with his mother until his death, which occurred August 13, 1929. As the population of King county increased, the McCombs' land became more and more valuable, although it, of course, was not the source of any great amount of income, and portions thereof were from time to time disposed of.

December 4, 1900, Mr. and Mrs. McCombs deeded to their son Tom 10 acres of land for an expressed consideration of $300. Approximately ten years later, Mr. and Mrs. McCombs deeded to their son Roland 5 acres, and January 23, 1926, Tom received a deed of 26 acres, leaving 16 1/4 acres still standing in the parents' names. James McCombs died September 9, 1926, at a great age and after a lingering illness. By his will, dated October 30, 1925, James McCombs left to his son Frank, whom he believed to be dead, $1, and to each of his other children $5, devising all the remainder of his estate to his wife. Mrs. McCombs had, on the same day her husband made his will, executed her will, making identical bequests to her children and naming her husband as her residuary legatee. These wills were practically identical with former wills, in which the testators had disposed of their respective estates in the same manner.

Tom McCombs died August 13, 1929, leaving a will in which he devised all of his property to his mother, if she survived him, and thereafter, August 21, 1929, Josephine L. McCombs made a will (being the will attacked in this proceeding), by which she bequeathed to her daughter Pearl the sum of $5,000; to her son Roland the sum of $1,000; to her son Frank the sum of $1; to Carl Olson, a neighbor and friend, to whom the family was obliged for many courtesies, $5,000; to Mary Bolin, who had been attending her as nurse, $2,500; to her grandchildren, J. Denny Clark and Elizabeth Clark (children of her daughter Pearl) and James Roland McCombs (child of her son Roland), $1,500 each; five friends or relatives were each bequeathed $100; the testatrix devising all the residue of her estate to John Marshall Maggs and E. B. Palmer, share and share alike, Mr. Palmer being named as executor without bond, and the will providing for the settlement of the estate without the intervention of the court. February 14, 1930, Josephine L. McCombs, being then very ill and suffering from cancer, executed a codicil to her will, which codicil is also under attack herein, by the terms of which the bequests to her daughter Pearl and her son Roland were revoked, for the expressed reason that the testatrix had that day delivered deeds to her children, one conveying to Mrs. Clark a tract of land about 6 1/4 acres in extent, the other conveying to Mr. McCombs a tract of 10 acres. By the codicil the bequest to Mrs. Bolin was reduced from $2,500 to $1,000, the bequests to the three grandchildren were revoked, a small bequest to Mrs. Isora Baker was added, and Messrs. Maggs and Palmer were requested to release from the lien of a mortgage, which they held upon the entire tract, the land deeded to the children of the testatrix. Mrs. McCombs, having reached the age of upwards of eighty years, died a few days after the execution of the codicil, her will above referred to and the codicil thereto having been admitted to probate February 26, 1930.

During the month of May following, this proceeding was instituted by way of a contest of the will and of the codicil, contestants alleging that the will and codicil had been procured by fraud and undue influence, and that the same were for that reason void. After a lengthy hearing, the trial court entered a decree upholding the will and the codicil thereto and dismissing the contest, from which decree contestants appeal.

Appellants assign seven errors which they contend entitle them to a reversal of the decree: (1) That the trial court erred in ruling that the burden rested at all times upon appellants to prove that the will was procured through fraud or undue influence; (2) that the trial court erred in denying appellants' application for a jury trial; (3 and 4) that the trial court erred in excluding testimony as to the mental capacity of James McCombs during the last two years of his lifetime, and also erred in refusing to allow appellant Pearl Clark to testify as to her father's intent concerning the disposition of his property; (5) that the trial court committed error in interrupting respondent E. B. Palmer while the latter was testifying as a witness on his own behalf; (6) that the decree is not sustained by the evidence, but, on the contrary, is against the evidence, which appellants contend requires the entry of a decree in their favor; and (7) that the trial court erred in denying appellants' motion for a new trial.

Appellants admit, although complaining of the doctrine, that the law favors wills. In re Roy's Estate, 113 Wash. 277, 193 P. 682. Appellants also criticize the attitude of courts towards will contests in which testaments are attacked upon the ground of alleged undue influence. While admitting that, generally speaking, the burden to establish the illegality of a will rests upon the contestant, appellants contend that under certain exceptional circumstances a contestant is to some extent relieved of this burden, and that in such cases when the contestant has made a prima facie case, the burden of proof shifts to the proponent of the will, who is then obliged to prove, by a preponderance of the evidence, that the will is genuine and untainted by fraud or undue influence. Appellants argue that their proof brought them squarely within such a recognized exception to the general rule, and that the trial court erred, in view of the evidence, in holding that the burden at all times rested upon appellants to prove the illegality of the will and codicil here in question. It may appropriately be said at the outset that we do not agree with appellants in this contention. Under the testimony, we hold that at no time did the burden of proof shift to respondents, but the same at all times rested upon appellants, who were required to prove, by at least a preponderance of the evidence, that Mrs. McCombs' will and the codicil thereto were procured by undue influence, or by fraud exerted or employed by respondents, to appellants' prejudice. Rem. Comp. Stat. § 1387; Higgins v. Nethery, 30 Wash. 239, 70 P. 489; Hunt v. Phillips, 34 Wash. 362, 75 P. 970; In re Adin's Estate, 112 Wash. 379, 192 P. 887; In re McKachney's Estate, 143 Wash. 28, 254 P. 455.

It clearly appears from the record that between respondent Marshall Maggs, on the one part, and Tom McCombs and his mother on the other, there existed a warm friendship of many years' standing. Mrs. McCombs for years kept a diary, and the same is replete with references to Mr. Maggs, and with recorded appreciation of courtesies extended by him to Mrs McCombs and her son. These diaries are most important, and we have studied them carefully. In this connection, appellants call attention to two notations in the diary in which Mrs. McCombs recorded the fact that Mr. Maggs had made lengthy visits which had delayed Tom in his milking and other duties in connection with the farm; but we cannot consider that these two references, in view of all the diaries, and other admitted facts, have any weight whatsoever, and we are of the opinion that a most sincere friendship of...