In re Miller's Estate

• Decision Date: 08 October 1907
• Citation: 91 P. 967,47 Wash. 253
• Court: Washington Supreme Court
• Parties: In re MILLER'S ESTATE.

91 P. 967

47 Wash. 253

In re MILLER'S ESTATE.

Supreme Court of Washington

October 8, 1907

Appeal from Superior Court, Columbia County; Chester F. Miller Judge.

In the matter of the estate of William A. Miller, deceased. From an order, an appeal is taken. Affirmed.

Will H Fouts and G. W. Jewett, for appellant.

M. M Godman, for respondents.

RUDKIN J.

This is an appeal from an order establishing a nuncupative will and admitting the same to probate. Upon the hearing of the petition for probate, the court found 'that the instrument filed herein and alleged to be the will of said Miller is not the entire or all the will made by him as shown from the evidence taken herein,' and granted 'leave to reduce or have reduced to writing and file herein the nuncupative will of said William A. Miller, as shown from the evidence to have been made by him, and upon the filing of the same such proceedings be had as the law may warrant in the premises.' Thereafter the will, 'as shown from the evidence to have been made,' was reduced to writing and filed with the clerk, whereupon the court entered an order establishing the will and admitting the same to probate.

The appellant seems to contend that, as soon as it appeared that the entire will of the testator was not in form and substance as reduced to writing and set forth in the petition for probate, the court had no alternative but to dismiss the petition. This contention is unsound. In the exercise of a sound discretion, the court might well permit the alleged will and its records to be amended to conform to the facts proved, and such discretion was properly exercised in this case. Again, it is contended that the evidence failed to show either the animus testandi or the animus nuncupandi or that the testator called upon any person present to bear witness that such was his will. Without discussing the testimony in detail, we think it clearly appears that the testator was strongly impressed with the probability of impending death; that he intended to make a will, and that his word should stand as his will; and that he called upon those present to bear witness that such was his will, or to that effect, as our statute provides.

It is next contended that the will was not made 'at the time of the last sickness' of the testator. Ballinger's Ann Codes & St. § 465. This presents the most serious question in the case. In the leading American case construing the term 'last sickness,' in statutes of wills, the opinion was written by Chancellor Kent. Prince v. Hazelton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307. It was there held by a divided court that the term 'last sickness' means where the testator is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. This construction of the statute has been adopted and followed in Georgia, Maryland, Mississippi, New Jersey, New York, Pennsylvania, Texas, and Virginia. 30 Amer. & Eng. Ency. of Law (2d Ed.) p. 568. A different rule prevails in Alabama, Illinois, Kansas, Nebraska, and Tennessee. In Johnson v. Glasscock, 2 Ala. 218, the court said: 'If a person in his last illness--the sickness of which he subsequently dies--impressed with the probability of approaching death, deliberately makes his will conforming to the statute, we do not feel authorized to say that it will be invalid because in point of fact he had time and opportunity to reduce it to writing.'...