In re Ney's Estate

• Decision Date: 05 September 1935
• Docket Number: 25648.
• Court: Washington Supreme Court
• Parties: In re NEY'S ESTATE. v. DIEDESCH et al. McCORMICK

48 P.2d 924

183 Wash. 503

In re NEY'S ESTATE.

McCORMICK v. DIEDESCH et al.

No. 25648.

Supreme Court of Washington

September 5, 1935

As Corrected October 4, 1935.

Department 2.

Appeal from Superior Court, Spokane County; Charles H. Leavy, Judge.

Two separate proceedings in the matter of the estate of Nicholas Ney, deceased, by Marie Kramer McCormick and by Mary M Diedesch and another for the probate of two different wills. The proceedings were consolidated, and from an order admitting to probate the will offered by Mary M. Diedesch and another and rejecting the will offered by Marie Kramer McCormick, Marie Kramer McCormick appeals.

Affirmed.

Edge &amp Wilson, of Spokane, and M. E. Jesseph, of Palouse, for appellant.

Post Russell, Davis & Paine and H. M. Berkey, all of Spokane, for respondents.

STEINERT Justice.

This is an appeal from an order admitting to probate one of two wills and rejecting the other.

Two separate proceedings originally begun for the probate of the respective wills were consolidated, and subsequent proceedings have been conducted under the title of the consolidated estate.

It is conceded that the first will, the one that was admitted by the court, was in all respects legally executed. It is also conceded that the second, or later, will, the one that was rejected, was signed by the testator and properly witnessed. The controversy here concerns the validity of the second will.

The attack upon the second will was upon two grounds: (1) That the testator was lacking in testamentary capacity at the time of making the will; and (2) that the will was executed under duress, menace, fraud, and undue influence. The court found against the first ground of attack, but sustained the second ground. The order made by the court, after reciting certain findings, concluded by admitting the first will to probate and rejecting the second. The proponents of the first will excepted to the finding of the court with respect to the first ground of their attack on the second will, and the proponent of the second will excepted to the court's ruling generally. This appeal was taken by the proponent of the second will. For convenience, we shall refer to the proponents of the first will as respondents, and to the proponent of the second will as appellant.

In their argument, counsel for appellant proceed upon the theory that the only question properly Before us is whether the second will was procured through duress, fraud, menace, and undue influence. Their contention is that, inasmuch as respondents have not cross-appealed from that portion of the order which found that the testator was mentally competent at the time of making the second will, they are now foreclosed from raising that question. The respondents, on the other hand, assert that the question of testamentary capacity and the question of fraud and undue influence are both Before us for consideration. In view of the conclusion that we have reached upon the record in this case, it becomes necessary for us initially to dispose of the question as to what issues are Before us.

Proceedings of this kind are equitable in nature. In re McCombs' Estate, 164 Wash. 339, 366, 2 P.2d 692. They are, therefore, upon appeal, triable de novo on the entire record. Tucker v. Inglish, 135 Wash. 146, 237 P. 297; Darrell v. Salwt, 138 Wash. 353, 244 P. 563; Sterling Chain Theaters v. Central Labor Council, 155 Wash. 217, 283 P. 1081.

Upon such trial de novo, the record may be examined to determine whether the evidence sustains the findings in some particular respect, and, if it be found upon the record that the judgment entered is a proper one, it should be affirmed, even though the basis upon which it was originally founded be an unsound one. In Huntington v. Love, 56 Wash. 674, 106 P. 185, the trial court had made a finding of insanity of one of the parties. On appeal, this court held that upon the findings as made the judgment would have to be reversed, but that an examination of the record disclosed that the findings were contrary to the evidence. In affirming the judgment, after disapproval of the findings, this court said, 56 Wash. 674, at page 678, 106 P. 185, 187:

'We hold, however, upon the record Before us, that the respondents are not concluded by the findings made; they having excepted thereto. All of the evidence has been properly certified to this court in a statement of facts, the cause is Before us for trial de novo, and it is our duty to examine the entire record and determine whether the evidence sustains the findings to which the respondents have interposed timely and proper exceptions. They were not aggrieved by the final judgment. It was satisfactory to them. They contend it was right, and could not appeal therefrom. If the proper judgment has been entered, it should be sustained, as respondents are entitled to have it affirmed, even though it may have been reached by unsound reasoning.'

We have a similar situation here. All of the evidence has been properly certified to this court in a statement of facts, and, assuming even that it was necessary to except to the objectionable finding, the record discloses that the exception was properly taken. We therefore have Before us, on this appeal, the same issues as were Before the trial court. With this introduction, we proceed to an examination of the evidence.

The testator, Nicholas Ney, who was of German and French extraction, was born in the province of Luxemburg in 1848. He had eight sisters and one brother. In 1882 he came to America and took up farming in the Big Bend country in this state. At or about the same time three of his sisters and their husbands also came to this country and located in the same community. These sisters were Mrs. Katherine Bodeau, Mrs. Marie Kramer, who later became Mrs. McCormick, and a Mrs. Hoss. Among Mr. Ney's relatives in Luxemburg was another sister whose married name was, likewise, Bodeau and who had a daughter by the name of Katherine. Having occasion herein to refer to two persons bearing the same name, we shall at times, in order to avoid confusion, speak of Mrs. Katherine Bodeau as the sister, and Miss Katherine Bodeau as the niece.

Mr. Ney was married twice but had no children. His second wife died in 1920, and, from that time until his death in 1934, he remained a widower.

By dint of hard work and exceptional thrift and industry, Mr. Ney acquired extensive farm-land holdings near Wilbur. After accumulating considerable wealth, he moved to Spokane and acquired some lots on North Division street, which he improved with a number of buildings, in one of which he lived with his sister Mrs. Hoss who was then a widow. It does not clearly appear when the move to Spokane was made, but apparently it was after the death of Mr. Ney's second wife. It was probably some time between 1924 and 1927.

In 1900, Mr. Ney had made a trip to Europe to visit his relatives. While there he prevailed upon his niece, Miss Katherine Bodeau, of whom he was very fond, to come to this country. The following year the niece, who was then eighteen years of age, came to America, her transportation and expense being paid by her uncle. During the next few years the niece spent her time with her uncle and her sister, Mrs. Sheffel, who also resided in the Big Bend country. In the meantime, the niece entered school to prepare herself for some gainful pursuit in the business world. After completing her schooling, she remained in Spokane for a few years and then went to Baker, Ore., to keep house for her brother and do office work. Later, she went to Portland where she kept books in a bank and subsequently in a hospital at a salary of $150 a month. This was about the year 1928. During the time of her residence in Oregon, the niece made frequent trips to Spokane and the surrounding country, visiting her uncle, her aunt Mrs. Hoss, and her sister, Mrs. Sheffel. In the meantime, also, Mr. Ney had lost his second wife and was living in Spokane with his sister Mrs. Hoss.

Upon the occasion of her later visits, the niece had many confidential conversations with her uncle, in which he broached the subject of her coming to live with, and take care of, him. Corroborative of Mr. Ney's extreme fondness for his niece and of his desire to have her make her home with him and to manage his affairs are a number of his letters to her. These letters also disclose considerable feeling on his part against the two sisters, Mrs. McCormick and Mrs. Katherine Bodeau.

In a letter dated September 15, 1928, Mr. Ney expressed great concern for the niece, who at that time was suffering from arthritis. He also expressed his desire that she come and live with him, as soon as she had recovered, and be his child, saying that he was saving for her welfare, and that the others could 'keep their mouths shut.' The letter indicated that 'the others' wanted him to spend his money so that there would be no fight over it afterwards, but that he intended to fix it so that there would not be any trouble in that respect. In the same letter he suggested that the niece become his bookkeeper.

A second letter bears date October 4, 1928. It refers to the other relatives and contains this significant paragraph:

'I helped all of them also in the first years here but they do not want to hear of it, as if it had been my duty. I put them on the best location and thru that they have become rich, and made me trouble from the start. Now they want to be nice to me to inherit from my estate which can never be.'

The reference to the relatives evidently did not include the sister, Mrs. Hoss, for apparently Mr. Ney had been living with her upon good terms, and, besides, when these letters were written, she was dead.

In the fall of 1928, the...