In re Needham's Estate

• Decision Date: 13 September 1912
• Court: Washington Supreme Court
• Parties: In re NEEDHAM'S ESTATE. v. LAZENBY et al. MELVILLE

126 P. 429

70 Wash. 229

In re NEEDHAM'S ESTATE.

MELVILLE v. LAZENBY et al.

Supreme Court of Washington

September 13, 1912

Department 1. Appeal from Superior Court, Spokane County; William A Huneke, Judge.

Proceeding by John I. Melville against Elizabeth Lazenby and others, in the matter of the estate of John Needham, deceased, to establish a lost will. From an adverse judgment, petitioner appeals. Affirmed.

H. N. Martin, Fred M. Williams, and R. M. Webster for appellant.

Hurn &amp Upton and Charles T. Goodsell, both of Spokane, for respondents.

PARKER J.

The petitioner, John I. Melville, commenced this proceeding in the superior court to establish a lost will, which he alleges was executed in March, 1893, by John Needham, late of Spokane county, who died on March 15, 1910. A trial before the court upon the merits resulted in a judgment denying the prayer of the petitioner, from which he was appealed to this court.

Counsel for appellant has assigned numerous errors based upon the court's sustaining of objections made by counsel for respondents to questions propounded to witnesses in behalf of appellant, and to offers of proof made in his behalf. Our view of the correctness of the trial court's final disposition of the cause renders it necessary for us to notice only the force and effect of the evidence so rejected by the court, rather than the somewhat numerous questions presented touching its admissibility. The will alleged to have been made by the deceased was sought to be established under section 1314, Rem. & Bal. Code, providing as follows 'Whenever any will be lost or destroyed, by accident or design, the superior court shall have power to take proof of the execution and validity of the will, and to establish the same, notice to (all) persons interested having first been given; such proof shall be reduced to writing, and signed by the witnesses. But no will shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions shall be clearly and distinctly proved by at least two credible witnesses.' We will now notice all of the evidence introduced, and which was offered and by the court rejected, tending to prove the provisions of the will. If all of such evidence was legally insufficient to establish the provisions of the will under the last clause of section 1314, above quoted, then, of course, the rejection by the court of such evidence would be, in any event, nothing more than error without prejudice, and would not render the final judgment erroneous.

George Skinner was called and testified in behalf of appellant as one of the attesting witnesses to the will. His testimony is not at all certain as to the deceased executing the paper he says he signed as a witness. However, he was asked and answered the following: 'Q. Can you remember the contents of that paper; could you tell the judge what that paper said? A. Well, I understood it was a will.' He was not permitted to state anything further as to the contents of the paper; the court so ruling, evidently upon the ground that the execution of the paper as a will had not been shown. H. W. Doane was also called and testified in behalf of appellant as one of the attesting witnesses to the will. His testimony is equally unsatisfactory as to the deceased executing the paper which he says he signed as a witness. Passing that question, however, he was permitted to testify to enough to clearly show that he did not know anything about the contents or provisions of the paper he witnessed, of his own knowledge. J. M. Adams, an attorney, was called as a witness for appellant. It was sought to be shown by his testimony that the deceased, about the year 1901, showed Adams a paper for the purpose of procuring advice relative thereto; that deceased then stated to Adams that it was his will; that Adams then examined the paper and became familiar with its contents; that it purported upon its face to be a will of the deceased, duly executed by him about the year 1893; and that Adams was able to state its contents and provisions from the knowledge of it thus obtained. It was also sought to be shown by his testimony what the contents and provisions of this purported will were. This offered proof was, upon objection of counsel for respondents, rejected by the court, apparently upon the theory that it was not competent proof, either of the execution of the will sought to be established, or of its provisions. Counsel for appellant also offered to prove by the testimony of two other witnesses 'that they together found an instrument [in 1910], and that the instrument was signed by the name of John Needham, claiming in that instrument to give all his...