In re Ziegner's Estate

• Decision Date: 10 February 1928
• Docket Number: 21006.
• Citation: 264 P. 12,146 Wash. 537
• Court: Washington Supreme Court
• Parties: In re ZIEGNER'S ESTATE. v. BANK OF CALIFORNIA, N. A., et al. RICE

264 P. 12

146 Wash. 537

In re ZIEGNER'S ESTATE.

RICE v. BANK OF CALIFORNIA, N. A., et al.

No. 21006.

Supreme Court of Washington

February 10, 1928

Department 1.

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

Petition by Tyrone Rice for revocation of letters of administration granted to the Bank of California, N. A., as administrator of the estate of Arthur E. Ziegner, deceased, for admission of will to probate and for appointment of petitioner as executrix under the will. From a judgment of dismissal petitioner appeals. Affirmed.

F. C Kapp, of Seattle, for appellant.

Robert B. Abel, of Tacoma, and G. W. H. Davis and W. F. Van Ruff both of Olympia, for respondents.

TOLMAN J.

Appellant, by her amended petition, alleges that she and the deceased, Arthur E. Ziegner, intermarried on August 29, 1910, and remained husband and wife until October, 1916, when, upon her application, the marriage was dissolved by divorce. On September 19, 1912, while they were still husband and wife and living together as such, the deceased made a will, which, if there were no children born of the marriage, made the wife the sole beneficiary, and named her as sole executrix. No children were born of the marriage. The deceased died in April, 1927, leaving an estate of the value of some $10,000 to $15,000, consisting of personalty, and, on the supposition that he died intestate, the Bank of California was duly appointed administrator of his estate on May 11, 1927. The petition alleges that such appointment was improvidently made under an erroneous showing that the deceased died intestate, and prays for the revocation of the letters of administration thus granted, the admission of the will to probate, and the appointment of petitioner as executrix, in accordance with the terms of the will. Respondents demurred to the amended petition on the ground that it did not state facts sufficient to constitute legal cause for the revocation of the letters formerly granted, or for the appointment of the petitioner as executrix, and at the same time moved to strike from the petition certain allegations as to petitioner's rights under the will, upon the ground that the will was null and void as to her. The demurrer was sustained, and the motion to strike granted, upon the theory that, under section 1399, Rem. Comp. Stat., the will had been revoked by the divorce. Petitioner not choosing to amend, but standing upon her petition, judgment of dismissal was entered against her, and she has appealed.

It will thus be seen that there is here presented only the one issue of law, as to the effect of a statute enacted after the divorce was granted upon a will executed before the divorce decree. There is no claim that the petition is insufficient in any other respect, and both sides seem to desire only that we pass upon the one question of the effect of the statute.

The statute is embodied in the Probate Code of 1917 (Laws 1917, p. 650, § 29), and the provision which is here to be construed was not theretofore a part of our statute law. It reads:

'* * * A divorce, subsequent to the making of a will, shall revoke the will as to the divorced spouse.'

It must be borne in mind that nothing is involved here as to the formalities of execution, attestation, or the qualifications of the witnesses, and the like, upon which the courts have so greatly differed as to whether the law in effect at the time of the execution or at the time of the death should govern. The statute in question strikes at the very substance of the will, and in this case at the whole of the substance, and what we may now say is limited accordingly.

Appellant contends, first, that, in the absence of a statute so providing, a divorce does not rovoke a former will in favor of the wife, and that therefore this will was a valid one in all its provisions at and after the time the divorce was granted; and, second, that the amendatory provision of the act of 1917, which we have quoted above, was not retroactive so as to invalidate the will, which was at all times valid prior to the enactment of the statute.

It may be admitted that the words of the statute are not such as to indicate an intent that it shall be retroactive, and that usually a statute will not be held to be retroactive unless that clearly appears to be the legislative intent. Nor do we now take issue with the appellant on the first contention as a brief and general statement of the law.

Perhaps the controversy can be more clearly elucidated by considering the nature of a will and the time it takes effect as such.

In Strand v. Stewart, 51 Wash. 685, 99 P. 1027, the court was considering a matter of procedure, and might safely have rested its opinion upon the admitted rule that procedural matters may be changed at the will of the Legislature, and that vested interests may not complain because no one has a vested right or interest in any particular form of procedure. But the court, clearly recognizing the difference between the two questions, went beyond the matter of mere procedure, and held that no one could have a vested interest in or under a will so long as its...