In re Riley's Estate

Decision Date16 June 1931
Docket Number22726.
Citation300 P. 159,163 Wash. 119
CourtWashington Supreme Court
PartiesIn re RILEY'S ESTATE. v. SHIELDS et al. SCHOEN

Appeal from Superior Court, King County; Arthur McGuire, Judge.

Proceeding by Edna M. Schoen to contest the will of S. V. Riley deceased, opposed by W. W. Shields and others. From a decree of dismissal, contestant appeals.

Affirmed.

Evidence held insufficient to warrant decree for will contestant on ground of undue influence.

MILLARD J., and TOLMAN, C.J., dissenting.

Greene & Henry and J. E. McGrew, all of Seattle, for appellant.

Lloyd R. Savage and Howard A. Adams, both of Seattle, for respondents.

BEALS J.

Edna M Schoen instituted this proceeding by way of a contest of the will of her father, the late S. V. Riley. From a decree dismissing her contest of her father's will, Mrs. Schoen appeals.

Appellant's assignments of error go to the merits of the controversy, and need not be separately discussed; her contention being that from the evidence the court should have sustained her contest and set the will aside.

S. V. Riley, being about sixty-three years of age, and having for thirty-five years resided in the city of Seattle, died in that city, July 13, 1929, leaving an estate of the gross value of $12,500. Mr. Riley was twice married; by his first wife he had two children, appellant Edna M. Schoen and a son who died childless; by his second wife Mr. Riley had no children. Appellant has no children of her own, but has adopted a baby girl now known as Joan G. Schoen. Respondents Gertrude Shields and Myrtle Hutchinson are sisters of Mr. Riley, and the principal beneficiaries under his will, of which respondent W. W. Shields (who is the husband of Gertrude Shields) is named executor. The will in question bears date April 19, 1929, having been made by Mr. Riley while he was a patient in a hospital at Ballard, and was admitted to probate July 18, 1929. By it appellant and her daughter Joan are each bequeathed the sum of $50 and no more, Mesdames Shields and Hutchinson being beneficiaries thereunder to the extent of the remainder of Mr. Riley's estate.

Appellant contested the will, first, upon the ground that her father, at the time he executed the same, was incapable of making a will because of lack of testamentary capacity; and, in the second place, because the will, if signed by Mr. Riley while he was mentally competent, was by him executed as the result of undue influence exerted over him by respondents, together with his brother, Jewett Riley, and other persons acting in respondents' interest.

Appellant testified that she was born in Indiana, having been brought to Seattle with her parents when about a year old. A year later, appellant's mother died, whereupon appellant and her brother went to Oklahoma, where they resided for thirteen or fourteen years with their maternal grandmother. Appellant's father could write but little besides his name, and during this period of her life appellant kept in touch with him through her paternal grandmother, who lived in Seattle, and with whom appellant corresponded. Upon the death of appellant's material grandmother, appellant came to Seattle, where she for a while resided with her uncle, Jewett Riley, and her grandmother. Appellant's father had remarried and was living with his wife in the city of Seattle, but appellant did not reside with her father, although she testifies that she was at all times on good terms with him, as well as with her stepmother. Upon the death of her paternal grandmother, appellant went to work as an apprentice in the telephone exchange at Ballard, residing with her aunt and uncle Shields, with whom she lived until her first marriage, which was unfortunate and was speedily terminated by divorce. After earning her own living for a while as bookkeeper, telephone operator, and cabaret entertainer, appellant, some twelve years prior to the trial of this proceeding, married Morris Schoen, with whom she has lived happily ever since; the first six years in Seattle, thereafter in California.

Mr. S. V. Riley's second wife died during the year 1926, and after her death Mr. Riley lived alone or with strangers. During the last years of his life he operated a lunch counter and confectionery store on the Kirkland ferry dock at the end of East Madison street in the city of Seattle. Mr. Riley at times drank to excess, and was occasionally assisted in the conduct of his business by his brother, Jewett Riley, who was himself a man of some property and apparently helped his brother without expectation of personal profit or advantage, although we find in the record testimony to the effect that Mr. S. V. Riley had at times complained of his brother, saying that he (Jewett Riley) had bought too much stock and wanted to run the store into debt so that he, by advancing money, could obtain an interest therein. It would seem that this was only another instance of Mr. S. V. Riley's peculiar ideas concerning his family and their supposed designs upon his property. We attach no importance to this matter, which is purely a collateral issue, but it to some slight extent illustrates Mr. Riley's temperamental attitude towards his relations.

It is evident that for several years prior to Mr. Riley's death, appellant was estranged from her aunts, the respondents in this proceeding, due to some old quarrel, and that much bitterness existed between appellant and Mr. and Mrs. Shields. In this proceeding, as in most will contests, many of the witnesses for the respective parties became violent partisans, and, in considering the questions presented, it must always be remembered that the cause must be decided on the facts and the law, free from prejudice, and without allowing the mind to be influenced by actions of the parties or any manifest bias on the part of some of their witnesses, regardless of whether or not such acts or bias might in themselves be deemed reprehensible, the actions of the parties being only important in so far as they have some bearing upon the issues to be determined.

Five wills made by Mr. Riley are referred to in the evidence. The first, no copy of which was produced, was made in 1927, or possibly earlier, and is referred to by Birdie M. Corbett, a witness on behalf of appellant, who stated that Mr. Riley told her that shortly after the death of his second wife he had made his will in favor of respondents. The second of these wills bears date April 5, 1928, and is in evidence. By it Mr. Riley bequeathed to appellant $500 and gave the rest of his estate to respondents. Will No. 3 was, at Mr. Riley's request, prepared by Mr. C. G. Moran, and bore date April 16, 1928, a few days after the execution of will No. 2. No copy of this will was forthcoming, but Mr. Moran testified that appellant was the principal beneficiary therein named. Another will, said to have been made by Mr. Riley, was referred to by his brother, Jewett Riley, in a conversation with appellant, Mr. Jewett Riley stating, as appellant testified, that his brother had made a will in favor of Mrs. Lena May Walden, who had worked for Mr. Riley about eleven years, including the period just before his death, and who testified as a witness on behalf of appellant. The fifth will referred to is the one which was admitted to probate, now being contested in this proceeding.

It clearly appears from the evidence that Mr. Riley was, to a great extent, concerned about his property and where the same would go after his death. He seems to have been at times under the impression that different members of his family were unduly anxious to obtain at least portions of his estate. It is evident that he would occasionally quarrel with his brother, Jewett, and his sisters and make derogatory remarks about them to third parties, but, notwithstanding this, it appears that in the main he was fond of them and relied upon them for comfort and assistance in time of trouble. While Mr. Riley regarded his daughter with affection, it not appearing that he ever quarreled with her, nevertheless we are satisfied that there did not exist between the two that strong bond of love which generally exists between father and daughter. Appellant had not lived with her father since she was two years of age, and it is perfectly evident that he did not have for her that deep and abiding love which one would expect a parent to bear toward his only surviving child. Appellant admits that when she and her husband adopted little Joan, she simply wired her father, 'I have a baby girl,' with the idea of letting him think the child was her own. Birdie M. Corbett, a witness on behalf of appellant, whose testimony has been already referred to, states that when Mr. Riley received this message from his daughter he laughed about it, stating that he was satisfied that the baby was a foster child only. It does not appear that he had any objection to the adoption of a child by his daughter, but the fact that he understood the true situation may explain his apparent indifference toward the baby and his failure to provide more substantially for her. It appears beyond question that respondents and Jewett Riley cordially disliked appellant. There is also some indication in the record that appellant's father did not like her husband, Mr. Schoen, although appellant says they were on good terms and at all times friendly. We consider it probable that Mr. Riley was not particularly fond of his son-in-law.

We shall now proceed to discuss appellant's argument. In the first place, she contends that as one of the witnesses to the will which she is contesting was the lawyer who drew the same, and the other was a stranger to Mr. Riley who never met him before being requested to come in and act as a witness to the will, the testimony...

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    ...capacity in the testator, and that the will speaks his wishes. In re Hanson's Estate, 87 Wash. 113, 151 P. 264; In re Riley's Estate, 163 Wash. 119, 300 P. 159. In order to overcome a will, the evidence must be cogent and convincing. In re Johanson's Estate, 178 Wash. 628, 35 P.2d In order ......
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    ...desire of the testator. Roe v. Duty, 115 Wash. 313, 197 P. 47; In re Seattle's Estate, 138 Wash. 656, 244 P. 964; and, In re Riley's Estate, 163 Wash. 119, 300 P. 159. definitions of the term 'undue influence' cannot be given that will serve as a safe and reliable test for every case. Each ......
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