In re Renton's Estate

• Decision Date: 08 January 1895
• Citation: 39 P. 145,10 Wash. 533
• Court: Washington Supreme Court
• Parties: IN RE RENTON'S ESTATE. v. CAMPBELL. SACKMAN ET AL.

39 P. 145

10 Wash. 533

IN RE RENTON'S ESTATE.

SACKMAN ET AL. v. CAMPBELL.

Supreme Court of Washington

January 8, 1895

Appeal from superior court, Kitsap county; John C. Denney, Judge.

Action by Elizabeth W. Sackman and Mary A. Gaffney against John A Campbell, executor, contesting the will of William Renton their stepfather. From an order sustaining a motion to dismiss the complaint, and judgment thereupon of nonsuit plaintiffs appeal. Affirmed.

Burke, Shepard & Woods and James L. Crittenden for appellants.

Struve, Allen, Hughes & McMicken, for respondent.

STILES J.

William Renton died on or about the 18th day of July, 1891, at Port Blakely, Kitsap county. About the year 1842 he was married to Sarah M. Sylva, a widow. In 1870 he made a will whereby, after leaving a legacy to each of his sisters, he devised the residue of his estate to his wife. In 1876 he made a second will, revoking the former will, devising all his estate to his wife during her life, but directing that after her death, or in case she should not survive the testator, the entire estate should go to his two sisters, Mary and Margaret A. Campbell. Mrs. Renton died, intestate, in May, 1890, before the death of her husband. The contestants are children of Mrs. Renton by her first husband, and they seek to set aside the second will, upon the usual grounds of the incompetency of the testator, undue influence, fraud, etc. Their original petition set forth simply that they were the only children of William Renton. The respondent, the executor of the will, moved that the contestants be required to make their petition more specific, to the end that it might appear whether they claimed to be the natural children of William Renton, born of his wife, Sarah M., or whether they claimed to occupy that relation in some other way. The court made an order in accordance with the motion, and in response thereto the petition was amended so that the second paragraph thereof read as follows: "Your petitioners are the natural children of one Joseph Sylva and one Sarah M. Sylva, his wife, both now deceased, and are the lawful issue of the marriage of said Joseph Sylva and said Sarah M. Sylva, his wife. But your petitioners further allege that after the death of said Joseph Sylva, which occurred in or about the year 1840, said Sarah M. Sylva, his widow, in or about the year 1842, married said William Renton, deceased; that, at the time of said last-mentioned marriage, your petitioners were children of tender years, to wit, your petitioner Elizabeth W. Sackman was then of about the age of six years, and your petitioner Mary A. Gaffney was then of about the age of four years, and they were then living with and in the charge of their mother, Sarah M. Sylva, and under her natural guardianship; that, upon the contracting of said marriage between said William Renton and said Sarah M. Sylva, your petitioners were thereupon immediately taken by said William Renton into his family, and reared, sustained, educated, and in all respects treated as his own natural children, and he thereupon and at all times thereafter called your petitioners, respectively, and caused them to be called and known by others, by his own family name, as though they were his own natural children, born to him in lawful wedlock; that after arriving, respectively, at the age of majority, each of your petitioners contracted marriage, and at the time of such marriage of each of your petitioners, respectively, said William Renton caused such marriage to be celebrated at his home and the home of his family, and then and there gave away your petitioners, respectively, in marriage, as his own children, respectively, and in all respects caused said marriages to be conducted and celebrated as marriages of his own natural daughters born to him in lawful wedlock and bearing his family name; and that your petitioners never knew, or had any reason to believe or suspect, till long after their respective marriages had been contracted, that they were not the natural children of said William Renton, born to him in lawful wedlock. Your petitioners have good reason to believe, and they allege, that they were duly adopted by said William Renton, in accordance with law, as his children; and that, upon and by such adoption, their family name was duly changed to the family name of said Renton. But your petitioners have been unable to ascertain, and do not at present know, where, when, or by what precise formalities they were so adopted by said Renton, and do not know and have been unable to ascertain where the record of such adoption exists; but they believe that they will be able at the proper time and in the proper manner to prove such act of adoption to the satisfaction of this court, or to prove the loss of the record thereof, and the contents and purport of such record. And your petitioners allege that, by reason of the premises, they are the children and legal heirs of said William Renton, deceased, and of his wife, said Sarah M. Renton, in manner and form as aforesaid. And they further allege that said William Renton, deceased, had no natural children born to him in lawful wedlock, and that your petitioners are therefore the only children and only legal heirs of said William Renton, deceased. And your petitioners further allege that they are, and each of them is, over the age of twenty-one years." Upon this the respondent moved that the petition be dismissed, because the allegations thereof as amended were so indefinite and uncertain that the precise nature of the charge was not apparent, because the petition failed to show the time, place, and particular manner of adoption, and under what law they were adopted by William Renton, or that they were adopted at all, and because they had failed to comply with the order of the court requiring the petition to be made more definite and certain in the particulars above mentioned. This motion was sustained by the court, and the petition was dismissed.

Strictly, this appeal should involve only a question of practice, inasmuch as the error complained of is that the court dismissed the contest, instead of striking out the insufficient allegations of adoption, leaving the remainder of the petition to be tested by the usual method of demurrer; and we are by no means certain that the contention of the appellants in this respect is not correct. But both sides of the case, led on by the appellants, have in their briefs presented the case here, as we presume it was presented below, as though a general demurrer had been interposed by the respondent. The case has been very ably argued by both sides, and to our minds the law of the case, as a whole, is so clear that, however we might be inclined to disapprove of the practice adopted, we do not think it would subserve any good purpose to reverse the order and send it back, only to have the case return here, as it almost certainly would, after a demurrer had been filed and disposed of.

One point which the appellants urge is that, however correct the action of the court may have been with regard to the allegations of adoption, there is yet left in the case a ground of contest which was untouched by the proceeding had for making the petition more specific, viz. that growing out of the fact that under the will of 1870, which is the only will admitted to be genuine and provable, Mrs. Renton was the sole devisee, and the contestants would now take the estate. The point of the controversy upon this subject is the death of Mrs. Renton before the decease of her husband. The appellants contend that, under the statute of this state, a wife is a "relative" of her husband, so that under a will containing a devise to her she dying first, her heirs succeed to the estate as she would have done had she lived. Respondent, on the other hand, as strongly contends that she is not a "relative," within the meaning of that law, and that, upon her death preceding that of her husband, the devise would lapse. Counsel urge with much force, concerning this ground of contest and the matter of law involved therein, that there has been no such disposition of the pleading as the Code recognizes,-that is, by demurrer; and that had they been given an opportunity, supposing a demurrer to this ground of contest to have been sustained, they...