In re Nielsen's Estate
| Decision Date | 21 February 1939 |
| Docket Number | 27277. |
| Citation | 198 Wash. 124,87 P.2d 298 |
| Court | Washington Supreme Court |
| Parties | In re NIELSEN'S ESTATE. v. SCHULTE. NIELSEN et al. |
Department 1.
In the matter of the estate of Anna Nielsen, deceased. Petition by August Nielsen, surviving husband of deceased, against Alma Schulte, individually and as executrix under the will of Anna Nielsen, deceased, to dismiss the alleged probate proceeding for want of jurisdiction, and to have vacated the decree of distribution. Petitioner, also, initiated a new action by filing petition for letters of administration upon estate of Anna Nielsen, and the two causes were consolidated for trial. From decrees denying petitioner any relief and dismissing all his applications, petitioner and William H. Pemberton Supervisor of Inheritance Tax and Escheat Division of the State of Washington, appeal.
Decrees affirmed.
Appeal from Superior Court, King County; Howard M. Findley, judge.
Joseph Matsen and John P. Matsen, both of Seattle for appellant August Nielsen.
Robert F. Waldron, John M. Boyle, Jr., and Charles Snyder, all of Olympia, for appellant Supervisor of Inheritance Tax and Escheat Division.
Robert A. Devers, of Seattle, for respondent.
Anna Nielsen died January 9, 1936. On January 14, 1936, a will executed May 19, 1928, was presented for probate by Alma Schulte, the person named as executrix. Testimony of only one of the subscribing witnesses to the will was given with respect to the execution of the will.
It does not affirmatively appear in the record that any evidence was given with respect to the authenticity of the signature of the other witness, as provided by Rem.Rev.Stat. § 1382. But independent proof was made of the authenticity of the signature of the testatrix and of her mental capacity at the time the will was executed. The court entered a decree admitting the will to probate and appointing Alma Schulte executrix. The decree contained recitals of facts showing that the will was duly executed.
On January 25, August Nielsen, the surviving husband of the testatrix, filed a petition praying that probate of the will be revoked. Under the will admitted to probate, he was beneficiary only to the extent of a bequest of ten dollars. He alleged that the will probated was not the last will and testament of the decedent. On February 25, Nielsen filed an amended petition to revoke probate of the will. He not only alleged that the will admitted to probate was not the last will and testament of decedent, but affirmatively alleged: '* * * that the deceased Anna Nielsen executed and published a subsequent will, the exact date of which to your petitioner is unknown.'
He also alleged that the will was not entitled to probate because '* * * one of the attesting witnesses to said will, was not produced nor his absence accounted for, nor was proof of his handwriting made according to the statutes in such cases provided for.'
Upon motion of the executrix to make the amended petition more definite and certain, the court entered an order requiring petitioner to set forth, by way of a bill of particulars, '* * * the name of the place in which the subsequent will * * * was made, the names of the witnesses to said will and the approximate date of the execution of said will, * * *'
The petitioner having failed to comply with the order, the court, on motion of the executrix, entered an order, striking the amended petition and dismissing 'the contest of said will.' No appeal was taken from the order so entered. Nor was any other petition in contest of the will filed within six months of the entry of the decree admitting it to probate.
On October 15, 1936, the executrix filed her final report and petition for distribution. On October 27, 1936, Nielsen filed objections to the final account and petitioned that '* * * an order be entered herein awarding and setting aside to him in lieu of homestead property of the above estate not exceeding the value of $3000.00, * * *'
On December 22, 1936, the final report, petition for distribution, and the objections thereto came on regularly for hearing in Department No. 13, Judge Kinne presiding. In the court journal appears the following minute entry as of that day:
Thereafter counsel for the executrix embodied the terms of the settlement in a written stipulation or agreement which Nielsen refused to sign. Whereupon Eggerman & Rosling withdrew from the case. Adams & Clark were substituted as counsel in their stead.
Under date of March 12, 1937, the following appears in the court journal of Department #13:
'In the Matter of the Estate of Anna Nielsen, Deceased.
'Minute Entry
'After argument by counsel the court finds that the stipulation presented to the court is the same as was orally agreed to by all parties at the time of trial.'
On March 16, 1937, the court entered its decree approving the final account and distributing the property of the estate in accordance with the stipulation which it found to have been made. No appeal was taken from the decree so entered.
On February 18, 1938, however, Nielsen, through his present attorneys, filed a motion to dismiss the alleged probate proceedings for want of jurisdiction, and because jurisdiction 'was improvidently assumed or obtained.' He also moved that the decree of distribution entered March 16, 1937, 'be forthwith adjudged to be null and void for having been improvidently entered.' On the same day, he filed a petition in the cause praying that the 'alleged probate proceedings be dismissed for want of jurisdiction,' because of fraud, and because 'the alleged will was improvidently admitted to probate.' He also prayed that the decree of distribution, entered March 16, 1937, be vacated, because of fraud practiced by the successful party, and because it was improvidently entered.
On the same date, February 18, 1938, Nielsen initiated a new action, #69408, by filing a petition for letters of administration upon the estate of Anna Nielsen. The causes, having been consolidated for trial, came on for hearing in Department #4, Judge Findley presiding. After hearing the evidence and arguments of counsel, Judge Findley entered decrees denying Nielsen any relief and dismissing all his applications. From the decrees so entered, the cases are here on a consolidated appeal.
Appellant has made sixteen assignments of error which counsel have argued under eight leading topics, each containing numerous subdivisions. It is neither feasible nor necessary to discuss the topics or subdivisions seriatim. For, as we view the record, all of appellant's contentions must stand or fall upon the answer to two questions; the first to be determined as a matter of law from the record, the second to be determined as a matter of fact from the evidence. The questions are: (1) Did the court have jurisdiction to enter the decree admitting the will to probate? (2) Was the agreement upon the basis of which the decree of distribution was entered on March 16, 1937, induced by fraud?
First: The jurisdiction of the court to hear applications for the probate of wills is found in Rem.Rev.Stat. § 1380, which provides:
It does not seem to be seriously questioned that all necessary facts existed to invoke the jurisdiction of the court: death of the testatrix, while a resident of King county, leaving property within the jurisdiction of the court. As has been pointed out, the court did not reduce to writing any testimony with respect to the signature of the attesting witness who did not testify. Nor does there appear in the record any reason for not producing him--death, insanity, or unknown residence. Rem.Rev.Stat. § 1382. This, however, is merely an irregularity in the proceedings antecedent to the decree admitting the will to probate. It does not affect the jurisdiction of the court to...
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