In re Rubens' Estate

• Decision Date: 14 December 1934
• Docket Number: 26764.
• Citation: In re Rubens' Estate, 74 P.2d 204, 192 Wash. 571 (Wash. 1934)
• Court: Washington Supreme Court
• Parties: In re RUBENS' ESTATE. v. RUBENS et al. RUBENS

74 P.2d 204

192 Wash. 571

In re RUBENS' ESTATE.

RUBENS v. RUBENS et al.

No. 26764.

Supreme Court of Washington

December 14, 1934

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Proceedings in the matter of the estate of Jennie Rubens, deceased wherein Myer S. Rubens filed petition contesting the will of Jennie Rubens offered for probate by Joseph I. Rubens and another, as executors of the estate, and others. From an adverse judgment, the contestant appeals.

Affirmed.

L. H. Brown and John Huneke, both of Spokane, for appellant.

S Edelstein, of Spokane, for respondents.

BLAKE Justice.

This is an appeal from an order dismissing a petition filed by Myer S. Rubens, contesting the will of his mother, Jennie Rubens. The will was executed March 22, 1922. Mrs. Rubens died August 7, 1936, leaving her estate to five children other than the contestant; cutting the latter off with a bequest of $1. The will was admitted to probate August 12, 1936. The contestant filed his petition February 11, 1937. The grounds for the contest, as set up in the petition, were fraud and undue influence.

The contest came on for hearing March 23, 1937, and continued to the close of contestant's evidence March 24th, at which time the proponents of the will interposed a challenge to the sufficiency of the evidence, which the court then and there granted.

Formal judgment was not entered, however, until April 15, 1937. In the meantime, the contestant, on March 26th, filed a motion for new trial on all the statutory grounds. April 9th contestant gave notice that he would make application on April 10th for leave to amend his original petition by alleging 'that Jennie Rubens did not sign said purported will and the signature appearing thereon is a forgery.' April 10th, the court entered its order reciting that the cause came on for hearing 'on contestant's motion for a new trial or for a reopening of the trial of said cause,' and 'ordered that said motions be and the same are hereby denied.'

We do not understand appellant to question the court's ruling on the challenge to the sufficiency of the evidence. We may say in passing, however, that we agree with the observation of the trial court that the evidence adduced by contestant failed utterly to establish fraud or undue influence. On the contrary, it is clear from the evidence that Jennie Rubens was never under the domination of her children or any one else. She herself was the head of the family. Her dominating influence in the family is epitomized in a question and answer found in the examination of Rabbi Fink: 'Q. As a matter of fact, there is hardly anybody in the Jewish community that did not know Jennie Rubens? She is what is generally known as a mother in Israel? A. The matriarch type.'

The motions to reopen the case and for new trial are predicated on the alleged discovery of evidence tending to prove the will a forgery. Appellant's argument in this court is predicated upon the theory that the court committed error in law in denying the motion on the ground that the statute of limitations had run against a contest on the ground of forgery. But it nowhere appears in the record that the court denied the motion upon that theory, or for any other specific reason.

The order denying the motions is general. And it is the established rule of this court that such an order will be reviewed only for abuse of discretion. If the court, either orally or in writing, assigns any specific reason for granting or denying such a motion, the legal sufficiency of the reason will not be reviewed by this court, unless it is incorporated in the formal order and appears to be the exclusive ground...