In re Wind's Estate

• Decision Date: 24 March 1947
• Docket Number: 30017.
• Citation: 178 P.2d 731,27 Wn.2d 421
• Court: Washington Supreme Court
• Parties: In re WIND'S ESTATE. v. WIND. HENDRICKSON

178 P.2d 731

27 Wn.2d 421

In re WIND'S ESTATE.

HENDRICKSON v. WIND.

No. 30017.

Supreme Court of Washington, En Banc.

March 24, 1947

Rehearing Denied April 14, 1947.

Further Rehearing Denied May 13, 1947.

Proceeding in the matter of the estate of August W. Wind, also known as August Wind, deceased, by Alfred Hendrickson against Saima Wind, administratrix (of estate), to probate a will and to have vacated a judgment setting off to Saima Wind property in lieu of homestead. From an adverse judgment, petitioner appeals.

Judgment reversed.

Appeal from Superior Court, Pacific County; John I. O'Phelan judge.

W. A Ackerman, of Aberdeen, for appellant.

Warner Poyhonen and Lester Stritmatter, both of Hoquiam, for respondent.

SIMPSON Justice.

January 31, 1946, Alfred Hendrickson filed two petitions attacking the probate proceedings of the estate of August Wind in the superior court of Pacific county. The first petition alleged that Saima Wind, surviving widow, had been appointed administratrix of her husband's estate, but that just Before the time of his death, August Wind had disposed of his property by will. The petitioner then offered to prove the will and have it admitted to probate. In his second petition Mr. Hendrickson moved to have vacated a certain judgment of the court which had set off to Saima Wind property in lieu of homestead.

The cause tried to the court resulted in the entry of a judgment to the effect that August Wind had made his will January 10, 1945, but that shortly Before his death, February 13, 1945, the will was destroyed at the request of the testator. The judgment also contains the statement that the court refused 'to consider any other issue until the purported will is established or its establishment denied.'

The petitioner, Alfred Hendrickson, has appealed to this court. His assignments of error attack the action of the trial court in the admission of evidence, in its refusal to determine the issue presented by the second petition, and in the entry of judgment denying probate of the will.

The evidence essential to a determination of the questions involved may be summarized as follows: August and Saima Wind, both past 50 years of age at the time of their marriage seven years Before his death, engaged in three suits for divorce, in none of which was a final decree entered. The interlocutory order in the last divorce action was entered January 10, 1945. They lived in a hotel which was the separate property of Mr. Wind.

It is admitted that Wind properly executed his will in the presence of two witnesses January 10, 1945, and that it remained in his possession thereafter. The will read as follows:

'Raymond, Wash Jan 10, 1945

'Ausust Wind hereby wills all his possessions, property and personal to Alfred Hendrickson to hold for his brother in Finland, Kalle Winni.

'August Wind

'Witnesses

'O. R. Nevitt

'Walter Boock

'Hugo Hogstrom'

August Wind died February 13, 1945, and on the same day his widow petitioned the court to be appointed administratrix of his estate. The court granted her petition February 28, 1945. She was also granted a family allowance out of the estate, and property in lieu of homestead was set over to her. Mrs. Wind testified that about January 11, 1945, her husband handed her his will which had been executed on the previous day and asked her to burn it, and that she had complied with his request. The witness was permitted to testify concerning many statements made by her husband during his last days to the effect that he wanted her to return and remain with him. Another witness corroborated Mrs. Wind's testimony relative to the destruction of the will by saying that she heard Mrs. Wind say in the hearing of Mr. Wind that he had given her his will and told her to burn it.

We are first met with a motion to dismiss the appeal. The ground for dismissal is that Alfred Hendrickson, on November 3, 1945, resigned as executor of the last will and testament of decedent, August W. Wind. The resignation referred to reads in part as follows: 'I hereby resign as executor of the last will and testament of said decedent, August Wind.'

The purported resignation, dated November 3, 1945, was not admitted in evidence, but is included in the transcript. Upon the record thus made, we are unable to consider the motion to dismiss. If respondent had desired to avail herself of the resignation, she should have offered proof thereon, and presented the document in evidence.

It is a fact, as demonstrated by the evidence, that the petition to probate the will was filed a considerable time after the purported resignation, and that the appellant answered without presenting the question of appellant's resignation. She therefore waived her right to object, and admitted the appellant's capacity to maintain his action. Mutual Reserve Ass'n v. Zeran, 152 Wash. 342, 277 P. 984.

The motion to dismiss the appeal is denied.

The judgment in this cause must be reversed upon two grounds: first, because the evidence was not sufficient to prove that the will was revoked by its destruction; and, second, that the evidence relating to its destruction was inadmissible. For the purpose of being definite, we set out the statements of Mrs. Wind concerning the destruction of the will as given by her on the witness stand:

'Q. Did you see the writing written by Dr. Nevitt that has been referred do as Gus' will? A. Yes.

'Q. When did you see it first? A. I seen it 11th day, morning.

'Q. The morning of the 11th? A. Yes.

'Q. What month? A. That is January.

'Q. What year? A. 1945.

'Q. Where did you see it? A. In the apartment.

'Q. Is that the Wind hotel? A. Yes.

'Q. In Raymond? A. Yes.

'Q. Where was it when you first saw it? A. In his pocket-book, bill fold.

'Q. How did you happen to see it? A. Well he gave it to me.

'Petitioner objects under both statutes and moves to strike the answer.

'The Court: I think the objection will be sustained presently, and exception allowed. Of course the court will change his ruling if you can convince him.

'Mr. Poyhonen: Q. You testified that Mr. Wind gave it to you? A. Sure.

'Q. Was that on the morning of the 11th of January? A. Yes.

'Q. About what time? A. That is about half past six oclock or seven oclock.

'Q. In the morning? A. Yes.

'Q. Did he hand it to you? A. Sure. * * *

'Q. What if anything did you do with the paper [will] that you had in your hand at that time?

'Petitioner renews last objection. Same ruling. Objection noted.

'Q. Don't say what he did, what did you then do with it if anything? A. I burned it.

'Q. Where did you burn it?

'The Court: I thought that was in the offer of proof. Mr. Ackerman: Yes it was. The Court: If it was the objection will be sustained. The court is willing to change the ruling if you convince me otherwise. Exception noted.

'Mr. Poyhonen: Q. Was anyone beside you and Gus Wind there at that time? A. No.'

The court's finding on this phase of the case is as follows: 'That said will was delivered by the maker in his lifetime to Saima Wind, his wife, with directions to destroy the same; that the said Saima Wind destroyed said will in the family apartment [and] lifetime of August Wind, at his request and that the same was destroyed by burning in the lifetime of the decedent, and that there was not a will extant at the time of the death of August Wind.'

Rem.Rev.Stat. § 1398, relating to the revocation of wills, provides: 'No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked except by a subsequent will in writing, or by burning, canceling, tearing, or obliterating the same, by the testator or testatrix, or in his or her presence, by his or her consent or direction.'

It will be noted that the evidence given by Mrs. Wind did not indicate in any way that her husband's will was destroyed in his presence. The mandatory provisions of the statute just set out require that Before it can be held that a will has been revoked by burning, it must be proved by competent evidence that the burning was done at the testator's request and in his presence. We must hold that the evidence was not sufficient to prove a legal revocation of the will made by Mr. Wind. Neither is the court's finding sufficient upon which to base a judgment that the will was destroyed according to the provisions of law relating to the revocation of wills. The evidence was sufficient to prove that the will was properly and legally executed; and that it was never revoked by Mr. Wind, but was fraudulently destroyed by Mrs. Wind. It was fraudulently destroyed because the destruction was unlawful and done to further the financial interests of respondent. We hold that the evidence was sufficient to prove a will, and that it must be admitted to probate.

In this case we have a proceeding initiated by the legal representative of August Wind, a deceased person, to have proved the destroyed will of Mr. Wind. Mrs. Wind was not merely a witness, but was also personally and financially interested in seeing to it that the will be invalidated. While the action was a contest over a will, the purpose of the proceeding was to defeat the title of Mrs. Wind, and thereby have the property of the estate given to Kalle Winni.

A transaction within the purview of Rem.Rev.Stat. § 1211, means the doing or performing of some business between parties, or the management of any affair. To be a transaction in such a case, the matter concerning which the testimony is given must involve some act by and between the parties for the benefit or detriment of one or both of the parties. It has been held and properly so, that the test of transactions with deceased within a statute excluding testimony concerning transactions with deceased, is...