In re Tresidder's Estate

• Decision Date: 26 August 1912
• Citation: 125 P. 1034,70 Wash. 15
• Court: Washington Supreme Court
• Parties: In re TRESIDDER'S ESTATE.

125 P. 1034

70 Wash. 15

In re TRESIDDER'S ESTATE.

Supreme Court of Washington

August 26, 1912

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

In the matter of the estate of Martha J. Tresidder, deceased. Richard Seymour Conklin successfully contested a will of deceased, and Thomas W. Tresidder appeals. Affirmed and remanded, with instructions.

Frank A. Noble and Peters & Powell, all of Seattle for appellant.

Brady &amp Rummens, of Seattle, and W. D. Peters, of Bremerton, for respondent.

CHADWICK J.

Martha J. Tresidder and Thomas W. Tresidder were married in the state of New York in the year 1890. At the time of their marriage Mrs. Tresidder was a widow with one son, Richard Seymour Conklin. A short time after they were married Mr Tresidder came West, and after a time he was followed by Mrs. Tresidder and her son. It is contended that the major part of the property owned by Mr. and Mrs. Tresidder at the time of her death was the accumulated earnings of the sums she brought with her from New York. Her son testifies that she had about her person a sum in excess of $9,000, when she left New York. We are inclined to believe that he is mistaken in this, for it seems that Mrs. Tresidder pawned her diamond earrings to bring the two of them from Bonner, Mont., to Seattle. The son, who was employed in a hotel, was left behind for a time. So far as the record shows, Mr. and Mrs. Tresidder struggled against adverse circumstances for several years. He followed various employments, and Mrs. Tresidder kept roomers and for a time worked in a real estate office. In 1897 Mr. Tresidder induced a party with some capital to bank it against his experience, and they started a small lumber business. This was sold out in January, 1901, Mr. Tresidder receiving $8,400 for his share. On the 9th day of March, 1901, there was deeded to Mrs. Tresidder two lots in Union addition to the city of Seattle. The consideration was $2,700, and the deed recites that the property was sold and conveyed to Martha J. Tresidder, 'as and for her sole and separate property, use and benefit, and not as community property.' There is much controversy over the status of this property, but it is our judgment that, wherever the money may have come from, the form of the deed (Mr. Tresidder having had charge of the transaction) would bind him to its terms, and that the property became the separate property of his wife. Prosperity measured in dollars seems to have followed the Tresidders from this time on. Mrs. Tresidder died May 22, 1910. The appraised value of the whole estate was about $67,000. From the time that prosperity began to dawn on them, Mrs. Tresidder seems to have developed a penchant for executing wills; the first will being drawn in 1901 at about the time the property which became the home property had been deeded to her. This circumstance, though slight, tends to discredit the testimony of Seymour that Mrs. Tresidder brought $9,000 with her and had always been possessed of some means. People without means do not as a rule make wills, although our literature is adorned with one purporting to be the will of a pauper. We are therefore disposed to believe that the whole of the property, saving and excepting only the home property, is community property. Mrs. Tresidder became ill of tuberculosis in 1909, and rapidly declined in health, and for a time before her death was unable to sit up in bed or to assist herself in any way. On May 18th, at the solicitation of her son Seymour, Mr. Walter D. Peters went to the home of deceased, and in his presence and in the presence of one Margaret Hopkins, a trained nurse, Mrs. Tresidder executed a will, the material parts of which follow:

'First. I give, devise and bequeath unto my son, Richard Seymour Conklin, of Seattle, aforesaid, lot one (1), north five feet of lot two (2) of and in block sixteen (16) of Union addition to the city of Seattle, county of King, state of Washington, U.S. A., house lot and all of its contents, and all of my personal property, including my jewelry, and the money in the Scandinavian, American Bank, of the aforesaid Seattle, Washington, of which I may die possessed.

'Second. I give, devise and bequeath all the rest, residue, of my estate be the same real or personal or mixed and wheresoever situated, equally unto my said son, Richard Seymour Conklin, and unto my husband, Thomas W. Tresidder, both of Seattle, Washington, share and share alike.'

Her mental capacity to execute this will is not denied. Consequently we shall not discuss it. On May 19th, so the testimony on behalf of Mr. Tresidder shows, Mrs. Tresidder told the nurse to telephone to Mr. Tresidder and ask him to come to the house. When he arrived, she is reported to have said: 'Oh, papa, I have done something I want to tell you about;' that she then said that she had executed the will which we have just referred to, and that she felt that it was 'forced on her.' Mr. Tresidder then prepared in his own handwriting a will which his wife attempted to execute; but having misspelled her name, he made another draft of the will, which was properly signed. The will is as follows:

'I, Martha J. Tresidder, of Seattle, Washington, being of sound mind and fully able to make a will, do hereby will and bequeath all of my property both real and personal of which I may die possessed to my husband, Thomas W. Tresidder of Seattle, Wash.

'I ask my husband, Thomas W. Tresidder, to make provision for my son, R. Seymour Conklin, as requested by me.

'I appoint my husband, Thomas W. Tresidder as administrator of my estate without bonds.

'All other wills that may have been made by me before this are void.'

This will was admitted to probate on June 1, 1911. On July 6th the son Seymour filed a contest, setting up that Mrs. Tresidder was not mentally competent to make the second will; that she had been overreached and unduly influenced by her husband, who was made her sole legatee. He also offered the will first quoted for probate.

Without reviewing the evidence, we believe that, although Mrs. Tresidder was in a very weak and emaciated condition, she was nevertheless mentally competent in the sense that she understood what she was doing. The right of a party to change his will at any time, so long as he has capacity to do so, cannot be questioned. Nor will mere persuasion on the part of a beneficiary overcome the will of a party, if from the whole record it is made to appear that it is his will. It is not influence alone, but an undue influence, which has been defined to be such an influence as deprived the party of the free exercise of his intellectual powers, an influence which is exercised by coercion, imposition, or fraud, an influence which impels the testator to act in fear, a desire for peace, or some feeling which he is unable to restrain. 8 Words and Phrases, 7166, 7172; In re Patterson's Estate, 123 P. 515.

From the very nature of things, undue influence can rarely be proved by direct evidence. The relations of the parties, surrounding circumstances, the habits and inclinations of the testator, his purposes and wishes, expressed at times when his words were clothed with the likelihood or truth, all furnish competent sources for the guidance of the courts when called upon to decide a case of this kind. In re Patterson's Estate, supra; Rollwagon v. Rollwagon, 63 N.Y. 505. There is no 'uniform rule capable of application apart from the facts of each case.' Wigmore on Evidence, § 2503.

To sustain the second will, the one proposed by Mr. Tresidder and admitted to probate, he seeks to show that the property was all accumulated through his efforts and as the result of his business acumen; that the mother felt that, because of her son's habits, he being addicted to the use of intoxicating liquors and occasional sprees, he was unfit to handle money or property, and it was better to leave all of her property to her husband; that he was attached to his wife and she to him; that the son is a profligate and ne'er-do-well, and has been supported in the main by his stepfather and mother ever since their marriage.

On the part of the contestant testimony has been offered to show that Mrs. Tresidder had frequently expressed the opinion that her husband had no affection for her; that she kept accounts and books, and had money on deposit in her own name which was unknown to Mr. Tresidder at the time of her death; that she was deeply attached to her son and he to her, and on frequent occasions she had expressed her affection for him and her intention to leave him her property; that she executed no less than five separate wills, in all of which she...