In re Zelinsky's Estate

• Citation: 130 Wash. 165,227 P. 507
• Court: United States State Supreme Court of Washington
• Decision Date: 05 June 1924
• Parties: In re ZELINSKY'S ESTATE. v. MAMLOCK. EIDINGER

227 P. 507

130 Wash. 165

In re ZELINSKY'S ESTATE.

EIDINGER v. MAMLOCK.

Supreme Court of Washington

June 5, 1924

Appeal from Superior Court, Pierce County; Clifford, Judge.

Will contest in the matter of the estate of Soloman Zelinsky deceased, Gertrude Z. Mamlock, respondent. From judgment of dismissal, contestant, Hugo W. Eidinger, appeals. Affirmed.

Jesse Thomas, of Tacoma, for appellant.

TOLMAN J.

This is a will contest based upon the sole ground of undue influence. At the close of contestant's case the trial court was of the opinion that the evidence introduced was wholly insufficient to prove any of the allegations of the petition and consequently entered a judgment of dismissal, from which the contestant has appealed.

The respondent has not seen fit to appear in this court or give us the benefit of any brief or argument in support of the judgment appealed from.

Three errors are assigned, and we shall treat them in inverse order.

First that the trial court erred in sustaining objections to questions propounded to the contestant as to transactions between himself and the testator, under section 1211, Rem. Comp. Stat. (P. C. § 7722). In the case of In re Anderson's Estate, 114 Wash. 591, 195 P. 994, we held that this statute does not apply in proceedings for the probate or contest of a will, and such seems to be the general rule.

While the trial court, on direct examination of the witness, did sustain such an objection, yet later on cross-examination the contestant was permitted to answer such questions fully, thus opening the door to a complete inquiry on redirect examination. The record furnishes no basis for a finding that any evidence was excluded or the contestant in any wise prejudiced by the ruling complained of.

Second there was introduced in evidence a deed reciting that it was made in consideration of love and affection and the sum of $10, lawful money of the United States, by which the contestant conveyed his interest in his mother's estate to the testator, his father, while he was still living; and also a document, dated some 18 or 19 months later, by the terms of which the father undertook to divide all of his property equally between his son and daughter, to take effect after his death. Contestant offered to testify as to the consideration for the deed which he executed as to whether or not the $10 therein mentioned as a part of the consideration was ever paid, and was interrogated as to whether the latter instrument was executed and delivered in consideration of the execution and delivery of the former. To all of these interrogatories objections were sustained. Assuming that in a proper case one may show the true...