In re Simpson's Estate, 23740.

• Decision Date: 25 August 1932
• Docket Number: 23740.
• Citation: 14 P.2d 1,169 Wash. 419
• Court: Washington Supreme Court
• Parties: In re SIMPSON'S ESTATE. v. SPOKANE & EASTERN TRUST CO. et al. SIMPSON et al.

14 P.2d 1

169 Wash. 419

In re SIMPSON'S ESTATE.

SIMPSON et al. v. SPOKANE & EASTERN TRUST CO. et al.

No. 23740.

Supreme Court of Washington

August 25, 1932

Department 2.

Appeal from Superior Court, Spokane County; William A. Huneke Judge.

Petition by Lemuel L. Simpson and others against the Spokane & Eastern Trust Company, executor of the estate of John W. Simpson deceased, and others, to have the probate of the will of John W. Simpson, deceased, set aside. From a judgment sustaining the will and the probate thereof, contestants appeal.

Affirmed.

E. H Belden and Jas. A. Williams, both of Spokane, for appellants.

Brown &amp Weller, of Spokane, for respondents.

MAIN J.

This is a will contest. John W. Simpson, a resident of the city of Spokane, this state, died testate in that city October 14, 1930. His will was admitted to probate October 17, 1930. Subsequently, certain heirs of the testator presented a petition asking that the probate of the will be set aside, and that the will be held to be of no effect. The cause came on for trial and resulted in findings of fact from which it was concluded that the claim of the contestants was not well founded. Judgment was entered sustaining the will and the probate thereof, from which the contestants appeal.

The facts may be summarized as follows: John W. Simpson, the testator, and his wife Millie for many years resided in the eastern part of this state, near the town of Garfield. They acquired considerable property which was of the appraised value of approximately $65,000. In 1920, Mr. and Mrs. Simpson moved to Spokane where they resided until the death of Mrs. Simpson in January, 1927. No children were born of their marriage, but about the year 1901 they took a baby boy, then only a few weeks old, into their home and named him Joe H. Simpson. Joe was never adopted by Mr. and Mrs. Simpson, but they brought him up as though he were their own child. After Mrs. Simpson's death, Joe and Mr. Simpson continued to live in the Simpson home in Spokane, doing their own housework and cooking, until the death of Mr. Simpson. In January, 1930, Mr. Simpson had a slight stroke of paralysis or hemorrhage of the brain that affected his right hand and arm to some extent. In May, 1930, he had a similar stroke, and on the evening of October 8, 1930, he had a third stroke. On the following day, a physician was called, and he informed Mr. Simpson that he should get his business affairs in shape as he might die at any time.

October 11, two days after the visit of the doctor, and which was a Saturday, James A. Brown, an attorney of Spokane, who had attended to legal matters for Mr. Simpson for about two years, was called to the home to draw the will. Mr. Simpson was in bed in an upstairs room, and Mr. Brown talked with him for twenty or thirty minutes to ascertain the data necessary to enable him to draw the will. Mr. Brown then went to a downstairs room and there drew the will in longhand. It was taken upstairs, Mr. Simpson executed it, and it was properly witnessed. In the will, the Spokane & Eastern Trust Company was named as executor and trustee. The will, after making the ordinary preliminary provisions that are found in such an instrument, and two or three small bequests, devised and bequeathed the remainder of the estate to Joe H. Simpson, the foster son. Mr. Simpson died, as stated, three days later, and on Tuesday of the following week.

For a number of years there had lived as a neighbor to Mr. Simpson one Carl O. Anderson, and Mr. Simpson and he were close personal friends. After the third stroke and up to the time of Mr. Simpson's death, Anderson was almost constantly with him. On Monday preceding the day on which Mr. Simpson died, and he was then in a comatose state, Anderson told the foster son that Mr. Simpson wanted to change his will, leaving everything to him (Anderson), but that, if Joe would give him a per cent. of the estate, he would see that the will was not changed. Joe accordingly signed a note in favor of Anderson for $7,500, and afterwards executed deeds to him for two pieces of property for which credit was given on the note for $5,000 and a new note given for the balance of $2,500. Subsequently an action was brought by Joe against Anderson to cancel and set aside the documents which he had executed, and that action had not been tried at the time of the trial of this action. The contestants are a brother of the testator and a number of nephews and nieces.

In the petition to set aside the will and the probate thereof, it was alleged that the testator, at the time he executed the will, was mentally incompetent, and that he was subject to undue influence. Upon the appeal, the charge of mental incompetency is not urged, and the question here presented is one of undue influence only. There is not a word of testimony as to anything said by Anderson to the testator with reference to the making of a will after the testator had the third stroke and prior to his death. Anderson was not called by either side to testify upon the subject of undue influence. There is no testimony showing undue influence or supporting facts from which such influence could properly be inferred. In the texts and adjudicated cases, what would constitute undue influence has been defined in different phraseology. In essence, they all substantially come down to stating, in effect, that such influence, which would vitiate a will, must be shown by the evidence to be such that the testator's volition, at the time of the testamentary act was controlled by another, and that the...