Ingersoll v. Gourley

• Decision Date: 15 March 1913
• Citation: 130 P. 743,72 Wash. 462
• Parties: INGERSOLL et al. v. GOURLEY.
• Court: Washington Supreme Court

130 P. 743

72 Wash. 462

INGERSOLL et al. v. GOURLEY.

Supreme Court of Washington

March 15, 1913

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Proceeding to contest a will by Miranda Crim and another against Thomas H. Gourley, as executor of the estate of Leslie L. Crim deceased. Application of M. H. Ingersoll for substitution as the executor of Miranda Crim, deceased, denied, and proceeding dismissed, and contestants appeal. Reversed and remanded, with directions to reinstate the proceeding, and to permit substitution of the executor.

M. H Ingersoll and Reynolds, Ballinger & Hutson, all of Seattle, for appellants.

J. L. Corrigan and M. H. Van Nuys, both of Seattle (Milo A. Root, of Seattle, of counsel), for respondent.

ELLIS J.

Appeal from the dismissal of an action to contest a will. The facts found by the trial court were substantially as follows: On June 1, 1911, Leslie L. Crim died. His sole heir at law was his mother, Miranda Crim. On September 18, 1911, a paper, purporting to be his last will and codicil, was admitted to probate. The respondent, Gourley, was appointed and qualified as executor. On January 23, 1912, Miranda Crim and Leslie C. Travers, a nephew of Leslie L. Crim, commenced an action against the respondent as executor to contest the will and codicil on the grounds of incompetency and undue influence. The action was tried, and on March 16, 1912, the court announced an oral decision upholding the will and codicil, and deciding that Leslie L. Crim was neither incompetent nor under undue influence when he made them. It is conceded that no judgment was entered on this ruling. On March 23, 1912, pending motion for a new trial, the court, being advised that Miranda Crim had died pending suit, suspended proceedings until an administrator might be appointed and substituted as plaintiff in her place. Miranda Crim died on February 2, 1912, at Rochester, N. Y., leaving as her heirs Leslie C. Travers, her grandson, and certain others. On April 25, 1912, the appellant M. H. Ingersoll was by the court appointed and qualified as administrator of the estate of Miranda Crim, deceased. He applied for substitution. Upon these findings the court as conclusions of law held that the right to contest the will and codicil did not survive the death of Miranda Crim; that the administrator of her estate had no right to be substituted as a party in the contest; that Leslie C. Travers had no right to continue the proceedings; and that the proceedings should be dismissed. Judgment went accordingly. It is apparently conceded that the original trial after the death of Miranda Crim was a nullity.

The sole question presented for our determination is: Does the death of a contesting heir of the putative testator terminate the contest of the will, or may the contest be revived and continued in the name of the administrator or heir of the deceased contestant? In other words, Does the right to contest a will survive to the heirs or personal representatives of the heir of the putative testator? The question was before us in the recent appeal in Re Siebs' Estate, 126 P. 912, upon the following facts: Dorothy Drury Siebs died, having willed all of her property to her sister Mrs. Moulton. The will was probated May 5, 1902. Her immediate relatives were her sister Mrs. Moulton, her brother George W. Drury, and her father, William C. Drury. Whether or not she left a husband did not appear, and, though that fact was adverted to by this court as an additional obstancle to the contest, the case was actually tried below and decided here upon the theory that her father, William C. Drury, was her sole heir at law. He died about six years after the death of Mrs. Siebs. George W. Drury, as an heir at law of William C. Drury, instituted proceedings to revoke Mrs. Siebs' will some seven years after its probate and some ten months after the father's death, on the ground that Mrs. Siebs was insane when she made the will. It was sought to escape the bar of the statute by showing insanity of William C. Drury, who but for the will would have been Mrs. Siebs' heir, from a time prior to her death until his own demise. While on the merits the case was decided adversely to the contestant on other grounds, the question of the capacity of the heir of an heir to maintain the contest met us at the very threshold of the case as necessarily involved before proceeding with the merits of the contest. Upon this phase of the case, we said: 'The respondents urge in this court the want of sufficient interest in the will in the appellant to enable him to maintain a contest thereof. They contend that a 'person interested in any will,' within the meaning of that phrase as it is used in the statute, must be a person who would himself, but for the will, have inherited the property devised and bequeathed thereby, and that the contestant is not such a person. But, without specially reviewing the reasons advanced to support the contention, we think it is not well founded. If it be true that William C. Drury would have inherited the property of Mrs. Siebs but for the will, and if it be true, further, that he was so far insane as to be incapable of managing his own affairs from a time preceding the death of Mrs. Siebs until his own death thereafter, then his heirs at law have, we think, such an interest in the will of Mrs. Siebs as to enable them to maintain a contest thereof. We have found few cases directly in point, but the following may be consulted as bearing more or less strongly on the question: Savage v. Bowen, 103 Va. 540, 49 S.E. 668; Brady v. McCosker, 1 Comstock (1 N. Y.) 214; Van Alen v. Hewins, 5 Hun [N. Y.] 44; Burnett v. Milnes, 148 Ind. 230, 46 N.E. 464; In re Langevin, 45 Minn. 429, 47 N.W. 1133.' There can be no question that the case is authority for the right of the heir of an heir to contest a will adverse to his interest as such heir; that is to say, that the right of contest survives. Inasmuch as the case before us presents but the single question and has been submitted on exhaustive briefs supplemented by able argument on both sides, we are impelled to reconsider the question before adopting the rule in the Siebs Case as final.

The statutory provisions relating to the survival of causes of action, citing by section number from Rem. & Bal. Code, are as follows:

'Sec. 193. No action shall abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, if the cause of action survive or continue; but the court may at any time within one year thereafter, on motion, allow the action to be continued by or against his representatives or successors in interest.'

'Sec. 967. All other causes of action than those enumerated in section 183, supra, by one person against another, whether arising on contract or otherwise, survive to the personal representatives of the former and against the personal representatives of the latter. Where the cause of action survives, as herein provided, the executors or administrators may maintain an action at law thereon against the party against whom the cause of action accrued, or after his death, against his personal representatives.'

Section 183, referred to in section 967, relates merely to the right of action for wrongful death, and has no bearing upon the present inquiry. These quoted sections have been construed as not intended to define what causes of action survive, but as referring to causes which already survived, and as merely directing in whose name the prosecution of such surviving causes may be continued. Slauson v. Schwabacher Bros. & Co., 4 Wash. 783, 787, 31 P. 329, 31 Am. St. Rep. 948; Rinker v. Hurd, 69 Wash. 257, 124 P. 687. Whether the right to contest a will does survive must, therefore, be determined upon the same principles as govern in other causes of action. If, under such principles, the right survives, then under the statutes quoted the action may be revived and prosecuted in the name of the personal representatives or successors in interest of the person originally entitled to contest.

It is a general rule, and one to which this court has adhered, that the test of survivorship of a cause of action is its assignability, and, conversely, the test of assignability is survivorship; that is to say, they are always concomitant. 3 Pomeroy's Eq. Juris. (3d Ed.) § 1275; Pomeroy's Code Remedies (3d Ed.) § 147; Slauson v. Schwabacher Bros. & Co., 4 Wash. 783, 31 P. 329, 31 Am. St. Rep. 948; Conaway v. Co-operative Homebuilders, 65 Wash. 39, 117 P. 716.

Our statute governing the right of contest (Rem. & Bal. Code, § 1307) is as follows: 'Sec. 1307. If any person interested in any will shall appear within one year after the probate or rejection thereof, and, by petition to the superior court having jurisdiction, contest the validity of said will, or pray to have the will proven which has been rejected, he shall file a petition containing his objections and exceptions to said will, or to the rejection thereof. Issue shall be made up, tried and determined in said court respecting the competency of the deceased to make last will and testament, or respecting the execution by the deceased of such last will and testament under restraint or undue influence or fraudulent representation, or for any other cause affecting the validity of such will.' While not in so many words declaring that the right of contest is assignable, the courts of several other states in effect have under analogous statutes so decided. The earliest case bearing upon the subject to which we have been cited is Smith v. Bradstreet, 16 Pick. (Mass.) 264. In that case the Supreme Judicial Court of Massachusetts held that a mere general creditor of an heir at law of a testator...