In re Whittier's Estate, 29762.

Decision Date03 January 1947
Docket Number29762.
Citation26 Wn.2d 833,176 P.2d 281
CourtWashington Supreme Court

Rehearing Denied Jan. 31, 1947.

Proceeding in the matter of the estate of Margaret Whittier, deceased wherein Wm. S. Bell was appointed executor and wherein Ida Irene Woodland filed a petition for an order revoking prior order admitting previously executed will to probate and admitting to probate a later document as the will of the deceased. From an adverse order, the executor appeals.

Reversed with directions.

MILLARD C.J., and SIMPSON, J., dissenting.

Appeal from Superior Court, King County; Calvin S Hall, judge.

H. A. Martin and Wm. S. Bell, both of Seattle, for appellant.

C. E. Hughes, of Seattle, for respondent.


Subsequent to the admission to probate of a decedent's will and the confirmation of appointment of the executor named therein, and during the early progress of administration upon the decedent's estate, an acquaintance or friend of the deceased filed a petition in the cause offering for probate a later document of a purportedly testamentary nature, which named only the petitioner as legatee and bequeathed to her a portion of the decedent's estate; petitioner's prayer was that the order admitting the previously executed will to probate be annulled and set aside, that the later document be admitted to probate as the will of the decedent or else as a codicil, and that the petitioner be appointed administratrix with the will annexed.

The executor answered, denying the material allegations of the petition and pleading affirmatively that, at the time the decedent signed the later document, she was of unsound mind, lacked testamentary capacity to execute that document, and was acting under duress and undue influence exerted upon her by the petitioner. The affirmative allegations of the answer were denied by petitioner's reply.

After a hearing on the issues thus presented, the trial court took the matter under advisement and, a month later, rendered a memorandum opinion, in consequence of which an order was entered admitting the challenged document to probate as the last will and testament of the decedent superseding the previously executed will to the extent that the two instruments were inconsistent, and directing the executor to districute to the petitioner the property described in the later document as offered by her. From that order the executor appealed.

At the time of her death on August 5, 1944, decedent, Margaret Whittier, was a widow eighty-two years of age. Her husband, Bert Whittier, died in 1933. For many years prior to the husband's death, the Whittiers owned a one-half interest in a parcel of real estate situated on Boylston avenue in the city of Seattle and improved with a duplex building consisting of two stories and an attic. The lower floor was designated by street number as 1417, and the upper two floors as 1419. During the period of their part ownership of the premises, Mr. and Mrs. Whittier occupied the upper two floors as their home, and, after Mr. Whittier's death, his widow continued in occupancy thereof.

Mr. William S. Bell, an attorney in Seattle, and his wife were intimate friends of the Whittiers, their acquaintanceship dating back to 1892. Mr. Bell had attended to Mr. Whittier's legal business during the greater part of the latter's lifetime, probated his estate, and thereafter continued to act as friendly adviser and legal counselor for Mrs. Whittier. In 1931 Mr. Bell drew Mrs. Whittier's will, which she executed. In 1933 he drew a second will for her, which she also executed. Neither of those wills, however, is involved in this action. In 1937 Mr. Bell drew a third will for Mrs. Whittier which she executed on December 15th of that year. In that will, which was of the nonintervention type, the testatrix bequeathed the sum of one thousand dollars to her sister-in-law, Lucy F. Whittier; devised a certain unimproved tract of land is Seattle to her niece, Margaret S. Galley, a resident of Oregon; devised to three persons, whose relationship to the decedent is not clearly shown but two of whom bore the name of Whittier, her undivided interest in the property on which the duplex building above mentioned is located; bequeathed and devised all the remainder of her estate, of whatsoever kind and wheresoever situate, to her sister, Mary E. Galley, a resident of Oregon; nominated William S. Bell as executor of the will; and revoked all former wills made by her.

It is conceded that Mrs. Whittier was a well-educated woman, a constant reader, a follower of the current news of the day, a good conversationalist, and a person of sociable habits. A number of letters and cards written by her years ago and admitted in evidence in the case evince not only a good command of language on her part, but also a penmanship that was easily legible. It is beyond dispute, however, that the death of her husband in 1933, when Mrs. Whittier was about seventy-one years of age, was a serious shock to her, and that from that time on she gradually failed in physical health and mental vigor.

During the year 1939, Mrs. Caroline E. Hutchinson, a widow, went to live with Mrs. Whittier, at the latter's request, in the duplex building. Mrs. Hutchinson was of approximately the same age as Mrs. Whittier, and a close friendship had existed between them since about 1903. Mrs. Hutchinson was also an intimate friend of Mrs. Whittier's sister, Mary E. Galley, who, with her daughter, Margaret S. Galley, resided in Hubbard, Oregon.

Mrs. Ida Irene Woodland, the petitioner and respondent herein, has for a number of years resided in Seattle and, prior to August, 1941, owned and operated successively a number of rooming houses in the general vicinity of the Whittier home. She was not acquainted, however, with Mrs. Whittier.

During the summer of 1941 Mrs. Woodland was endeavoring to find, purchase, and use as a rooming house some desirable place located in the vicinity of 'First Hill,' which is a general disignation of the locality in which both she and Mrs. Whittier were then living. Through a real estate agent she became interested in purchasing the duplex building mentioned above.

As a result of negotiations conducted between the realtor and Mr. Bell, a real estate contract was entered into on August 14, 1941, wherein Mrs. Whittier and her co-owner of the Boylston avenue property agreed to sell and Mrs. Woodland agreed to buy that property for the sum of $5,250, of which $1,000 was then paid in cash, the balance of the purchase price to be paid in monthly installments of $42.50, inclusive of interest.

A few days thereafter, Mrs. Woodland took possession of the property. Mrs. Whittier continued to live in the duplex house, renting quarters from Mrs. Woodland. Mrs. Hutchinson also remained and, apparently under some arrangment with Mr. Bell, took care of Mrs. Whittier, who by that time had become quite feeble in health and was unable to look after her affairs.

Shortly after Mrs. Woodland moved into the place, Mr. A. W. Baker, who subsequently quently figured in the challenged document involved in this action, became a tenant of Mrs. Woodland and occupied a room on the attic floor of the building. Mr. Baker was a friend of Mrs. Woodland and had rented rooms from her at various places in times past.

By the 1st of January, 1942, Mrs. Whittier's mental deterioration had become very noticeable to those who knew her. Its particular manifestation was that she was extremely forgetful and seemed to be unable to comprehend the nature and importance of matters relating to her financial affairs. Testimony was given relating to marked changes in her habits, to untidiness in contrast with her former neatness of appearance, to outbursts of weeping and moaning, to pleasure in sympathetic attention, and to a progressive decline in her mental powers, all symptomatic of senile dementia. Mr. Bell visited her frequently, endeavoring not only to look out for her physical welfare, but also to see that any business matters in which she was concerned received proper attention.

It is clear from the evidence, and nowise disputed, that from the time of Mrs. Woodland's arrival upon the premises and continuously thereafter throughout the period of time here involved, she manifested a very deep interest in Mrs. Whittier, calling her by her first name, and addressing her in affectionate terms. She spent considerable time in Mrs. Whittier's quarters and frequently took her out for short walks and occasionally for an automobile ride.

For some reason or other, however, Mrs. Woodland did not get along well with Mrs. Hutchinson, who was Mrs. Whittier's companion. Mrs. Woodland seems to have entertained a suspicion that Mrs. Hutchinson was imposing on Mrs. Whittier and was inducing her to sign checks drawn in Mrs Hutchinson's favor. At any rate, in January, 1942, Mrs. Woodland made a trip to Tacoma in company with Mrs. Whittier and Mr. Baker, and from that city telephoned to Miss Galley, Mrs. Whittier's niece, residing in Hubbard, Oregon. In that conversation Mrs. Woodland suggested that because of Mrs. Whittier's mental condition a guardian should be appointed to manage her affairs; she also intimated that Mrs. Hutchinson was the cause of the present difficulty. About that same time, Mrs. Woodland got possession of three checks, totalling fifty-five dollars, which had been drawn by Mrs. Whittier in favor of Mrs. Hutchinson and cashed by the latter; these checks Mrs. Woodland sent to Miss Galley in corroboration of her former complaint made over the telephone. Miss Galley did not react favorably to Mrs. Woodland's statements, but nevertheless communicated at once with Mr. Bell, suggesting that...

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11 cases
  • French's Estate, In re
    • United States
    • Montana Supreme Court
    • April 21, 1960
    ...the provisions of the will, to explain or republish it, or to revoke it, and it must be testamentary in character. In re Whittier's Estate, 26 Wash.2d 833, 176 P.2d 281. A codicil need not be called a codicil. In re Carr's Estate, 93 Cal.App.2d 750, 209 P.2d 956; In re Atkinson's Estate, 11......
  • Burr v. Lane
    • United States
    • Washington Court of Appeals
    • January 14, 1974
    ...are able to review the error assigned under the rationale of Bruckurt v. Cook, 30 Wash.2d 4, 190 P.2d 725 (1948); In re Estate of Whittier, 26 Wash.2d 833, 176 P.2d 281 (1947); Moore v. Spokane, 88 Wash. 203, 152 P. 999 (1915). Plaintiff disagrees with the court's conclusion that defendant ......
  • Thilman v. Thilman
    • United States
    • Washington Supreme Court
    • May 20, 1948
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  • Gilmartin v. Stevens Inv. Co.
    • United States
    • Washington Supreme Court
    • September 21, 1953
    ...Powell v. Fassett, 69 Wash. 555, 125 P. 963; State ex rel. Rand v. City of Seattle, 13 Wash.2d 107, 124 P.2d 207; In re Whittier's Estate, 26 Wash.2d 833, 176 P.2d 281. Substantial compliance with the rule is all that is required. Bobst v. Hardisty, 199 Wash. 304, 91 P.2d We believe that th......
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1 books & journal articles
  • Legislative Lapses: Some Suggestions for Probate Code Reform in Washington
    • United States
    • Seattle University School of Law Seattle University Law Review No. 10-02, January 1987
    • Invalid date a "will" or a "codicil," its effect as not revoking the first should be the same. See In re Whittier's Estate, 26 Wash. 2d 833, 847, 176 P.2d 281, 288 (1947) ("whether a particular testamentary instrument is a codicil or a later will depends upon the intention of the testator or testatri......

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