In re Roy's Estate

• Decision Date: 30 November 1920
• Docket Number: 16019.
• Citation: 193 P. 682,113 Wash. 277
• Court: Washington Supreme Court
• Parties: In re ROY'S ESTATE et al.

193 P. 682

113 Wash. 277

In re ROY'S ESTATE et al.

No. 16019.

Supreme Court of Washington

November 30, 1920

Department 2.

Appeal from Superior Court, King County; R. L. McCroskey, Judge.

In the matter of the estate of Euphemia Roy, deceased, and the community estate of said deceased and L. Roy, her husband. From a judgment unfavorable to petitioner in a contest of the will of deceased, the petitioner appeals. Affirmed.

Earl G Rice, Geo. H. Rummens, and Lloyd R. Savage, all of Seattle for appellant.

Wright Kelleher, Allen & Hilen, of Seattle, for respondents.

MAIN J.

This is a will contest. The testatrix, at the time of her death, left surviving her as her heirs at law her husband, L. Roy, and three sons, the youngest of whom is the contestant. In the petition to set aside the probate of the will three charges are made: First, lack of testamentary capacity second, undue influence; and, third, fraudulent representations. Issues were joined upon all three. The cause was tried to the court without a jury and resulted in findings of fact, conclusions of law, and a judgment unfavorable to the petitioner upon all the grounds. From this judgment the appeal is prosecuted.

The charges will be considered in the order stated, all of which prsent questions of fact upon which the trial court held against the petitioner. Upon the first charge, that of lack of testamentary capacity, the following may be taken as a summary of pertinent facts: Prior to 1913 the testatrix had been troubled for some years with insomnia. To relieve this she began the use of intoxicating liquor, and in time became very much addicted to the use of that stimulant. To cure the habit, she, on two or three occasions, was placed in a sanitarium. In March, 1913, she suffered a stroke of paralysis which affected her right side. In a few weeks she recovered from the severity of the stroke and thereafter was able to walk about, dragging the right foot a little. There was also a continuous impediment in her speech. In other respects she was normal. She was able to read the newspapers, plan the household affairs, walk about the neighborhood in which she and her husband lived, and go downtown on shopping trips. From the time she had the stroke until the time of her death there was employed for her constantly a lady attendant who assisted her in managing the affairs of the home, looked after her wants, and accompanied her upon all occasions when she went out. There is some evidence that in the month of January, 1916, she had an illness, the exact nature of which the record does not make very clear. In any event, she had recovered from this, and her condition was, generally speaking, such as has already been indicated. On March 28, 1916, she made her will, devising her interest in the community property to her husband for his lifetime and then providing that it should go to the three sons, share and share alike, except that the youngest son, Clyde Roy, should be charged with an advancement of $22,500. Approximately 2 1/2 years after the execution of the will, and on September 18, 1918, Mrs. Roy died. The will was admitted to probate, and thereafter this contest was instituted. Upon the trial a number of friends and neighbors testified to facts which tended to show her mental capacity to make a will.

One witness, a lady approximately 50 years of age and apparently much above the average in intelligence, who had been her attendant and companion for a year prior to the execution of the will, and for approximately two years thereafter, testified that Mrs. Roy could have named every piece of property which she and Mr. Roy owned, if asked to do so, without any suggestion whatever; that she could concentrate her mind sufficiently to do this; and that she could name the different relatives of the family, her sons, daughters-in-law, grandchildren, and sisters without any suggestion, together with their relationship to her. This testimony, if true, would meet the requirements of the rule as to the mental capacity requisite to the execution of a valid will.

Upon the trial the contestant offered the testimony of one Dr. H S. Hill, who had been Mrs. Roy's attending physician at the time of the execution of the will and for some time prior thereto. This testimony was received by the court over objection in order that the record, if the case was appealed to this court, might be complete. The trial court declined to consider the testimony, believing that it was not admissible under section 1214 of Remington &amp Ballinger's Code. It is strenuously urged that it was error not to consider this testimony, and, if it had been given its due weight, it would show lack of capacity to execute the will. Whether the testimony of the attending physician was admissible under the statute named, when offered by the contestant of the will, will not here be determined. It will be assumed only that the testimony is properly in the record. The testimony of Dr. Hill, when taken in connection with all the other evidence in the case, is not sufficient to show lack of testamentary capacity. Dr. Hill...