In re Zimmerli's Estate, 22765.

• Decision Date: 24 April 1931
• Docket Number: 22765.
• Citation: 162 Wash. 243,298 P. 326
• Court: Washington Supreme Court
• Parties: In re ZIMMERLI'S ESTATE.

298 P. 326

162 Wash. 243

In re ZIMMERLI'S ESTATE.

No. 22765.

Supreme Court of Washington

April 24, 1931

Department 1.

Appeal from Superior Court, King County; Edwin Gruber, Judge.

Proceedings to contest a will of Fred Zimmerli, deceased. From a judgment for the contestants, revoking the probate, Edna Thorson, the proponent, appeals.

Affirmed.

Robert A. Devers and Wettrick & Wettrick, all of Seattle, for appellant.

Chadwick & Chadwick, of Seattle, for respondents.

HOLCOMB J.

Fred Zimmerli, born in Switzerland in 1856, came to the United States as a youth. He married in Illinois and engaged in business as a tailor. One daughter was born to him and his wife. Later, he removed to St. Louis with his family where he followed his trade. When the daughter was about ten years of age, Mrs. Zimmerli obtained a divorce and was awarded the custody of the daughter. Within two years after the divorce, both of the parties again married. The daughter continued to live with her own mother, but visited frequently with her father and stepmother while they lived in St. Louis. Zimmerli removed to California and after the earthquake there came to Seattle. During this period he and his second wife wrote frequently to his daughter. After the death of his first wife, Zimmerli and his second wife went to St. Louis and visited the daughter. Upon the death of his second wife, Zimmerli notified his daughter and shortly thereafter wired her to come to him in Seattle. The daughter and her husband had left for Seattle before receiving his wire. Zimmerli had several nieces and nephews in St. Louis and one of whom, a widow, had come to Seattle before the visit of his daughter and her husband, to keep house for him. Shortly after her arrival he made a will in her favor. She remained with him about two weeks. Zimmerli made several wills during the last few years of his life, in one of which he gave one-half on his estate to his daughter, Edna Thorson. In May, 1917, Zimmerli went to Switzerland and visited an aged sister who was blind. While there he met several nieces he had never met before. On his return from Switzerland he met another niece in Philadelphia, who died while he was there. After his return from Switzerland, Zimmerli made a will in which he made bequests to his nieces and nephews in Europe and in the United States, except one nephew, Fred Zimmerli, of Portland, and gave his daughter one-eighth of the estate. After returning from Switzerland he spent a short time in Seattle, then sent his securities to St. Louis and went there to reside with his daughter. During his stay there, the city was visited by a tornado, and the home of his daughter was destroyed. He returned to Seattle and lived in a hotel. Witnesses testified that while living at the hotel, before his last visit to his daughter Zimmerli stated that he was going to make a will leaving all his property to his daughter, Mrs. Thorson, and to his blind sister.

Zimmerli became ill in January, 1929. The daughter came from St. Louis in response to a message from Zimmerli's doctor and remained in Seattle about twelve days. Her father then appeared to be improving, it seemed to her unnecessary to continue the expense of staying in Seattle, and she returned to her home. Zimmerli died April 11, 1929, and one Sprague immediately applied for letters as special administrator. The safety deposit box used by Zimmerli in his lifetime was opened and a will was found, dated February 23, 1928, naming Fred Strasser, Swiss consul, as his executor. In this will he directed that his estate be divided into two parts: The first part to be divided into four shares, one of which was devised and bequeathed to his daughter Edna, Mrs. Thorson, the other three shares of the first part to certain nieces and a nephew named Charles Zimmerli; the second part to be divided into eight shares, devised equally to eight named nieces and nephews, the children of a deceased sister in Switzerland. The Portland nephew, while visiting Seattle during the illness of his uncle, also found a will dated September 6 1927, which had the name of the testator cut out and in which will the daughter Edna had been devised and bequeathed one-half of the testator's estate, the other half being divided into eleven shares, which were divided among certain named nieces and nephews.

The will of February 23, 1928, being duly executed in the presence of the required witnesses, was admitted to probate in the superior court of King county, and Strasser, the executor, proceeded to administer upon the estate. About a month after the probate of the will, Edna the daughter, then in St. Louis, came to Seattle. She visited and cultivated the acquaintance of a Mr. and Mrs. D. C. Taylor, who were purchasing real estate from Zimmerli on contract. She complained to them that her father had been unfair to her in his will and wept in their presence. She stayed in Seattle for some time and finally asked the executor for some of her deceased father's personal effects. Two suitcases belonging to her father, which had been left in his room in the hotel when he was taken to the hospital, were found deposited in a storage room. These suitcases had been twice examined by the Portland nephew and only some unimportant papers found in them. Among other papers was the will of September 6, 1927, from which the signature had been cut. Mrs. Thorson went through the contents of the suit cases while they were still in the hotel and asked the housekeeper to watch her in her search. When Strasser qualified as executor he took possession of the suitcases. He made a careful and thorough examination of their contents, being assisted therein by his office assistant. Mrs. Thorson was given the old suitcases, which she took with her and returned to St. Louis. After her return to her home she made a remarkable discovery of another will which she said was found in an old shirt, which had been laundered in Seattle, within the laundry folder in a large sealed envelope without any writing upon the envelope. This discovery happened in the presence of a neighbor lady and her daughter. The neighbor lady had a husband and Mrs. Thorson intended to give the shirt to the neighbor if she would accept it. When undertaking to show the neighbor lady the shirt, the envelope dropped from the folder. In September, 1929, Mrs. Thornson wired the executor of the discovery of this other will. She had a photostatic copy made before sending it to Seattle, where it was admitted to probate upon the formal testimony of Mr. and Mrs. D. C. Taylor, the attesting witnesses thereto. Within six months after the admission to probate of this will, on January 27, 1930, this contest against that will was instituted.

The trial judge, after examining all the evidence in the case and hearing the testimony of the subscribing witnesses to the...