Lohse v. Spokane & Eastern Trust Co.

• Decision Date: 24 October 1932
• Docket Number: 23846.
• Citation: 170 Wash. 46,15 P.2d 271
• Parties: LOHSE v. SPOKANE & EASTERN TRUST Co. et al.
• Court: Washington Supreme Court

15 P.2d 271

170 Wash. 46

LOHSE v. SPOKANE & EASTERN TRUST Co. et al.

No. 23846.

Supreme Court of Washington

October 24, 1932

Department 2.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

Action by Stephania Lohse against the Spokane & Eastern Trust Company, as executor of the estate of John W. Simpson deceased, and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

P. C Shine and P. C. Shine, Jr., both of Spokane, for appellant.

Brown &amp Weller, of Spokane, for respondents.

HOLCOMB J.

This action was brought by appellant to compel the specific performance of an alleged contract made by John W. Simpson, deceased, to devise and bequeath to her all his property upon his death.

Appellant alleged in her complaint, and introduced evidence attempting to prove, that in the early part of 1929, John W. Simpson made a proposition to her that if she would continue to take care of him as she had in the past, permit him to come to her home more often to play cards, and would visit him when he was sick, he would make her the sole beneficiary in his will; that she accepted this proposition and performed all such services up to the time of his death, but that Simpson failed to execute such will. Appellant therefore asks that the entire property be set over to her in specific performance of the contract.

Respondents denied generally the allegations of the complaint, and, after a trial to the court without a jury, the court rendered its oral opinion deciding in favor of respondents, and made findings, conclusions, and judgment accordingly. This appeal results.

Simpson and his wife were pioneers in the Palouse country, this state, but moved to Spokane many years prior to this action, continuing their residence there until Mrs. Simpson's death in January, 1927. They had no children, and about 1901 took a baby boy into their home, naming him Joe H. Simpson. He was never adopted, but was raised by them as their own son, and after the death of Mrs. Simpson he continued to live with John W. Simpson at the family home, where they did their own housework. The only extended absence of Joe from the Simpson household was during the summer of 1929, when he was employed on a farm in the southern part of Spokane county for several months, coming home on Sundays.

The Simpsons had accumulated a comfortable fortune amounting to about $70,000, and John W. Simpson, on his death, left all the property to Joe Simpson by will, save small legacies to his brother, and to the brother and sister of Mrs. Simpson.

Appellant, whose husband had died in May, 1928, became acquainted with John W. Simpson in July or August, 1928. Thereafter, the acquaintance progressed so that Mr. Simpson taught appellant to play pinochle and was frequently at her home for meals and to spend the evening playing cards. The frequency of these visits is a much-disputed matter of evidence.

One assignment of error by appellant is that the trial court improperly admitted in evidence the purported last will and testament of John W. Simpson, which bears date October 11, 1930, three days Before his death; and also erred in admitting in evidence statements claimed by respondents' witnesses to have been made by deceased that he would leave his property to Joe H. Simpson. Many witnesses were permitted to testify, over appellant's objections, to what deceased had said in the latter connection. Appellant asserts that 'deceased having entered into a binding contract had absolutely no right to make any of the statements or the will that respondents introduced.' It is manifest that the assumption of the existence of such 'binding contract' assumes the very matter in issue, which was denied by respondents, and as to which the evidence is clearly conflicting. As to the introduction of the will, where an oral contract is alleged for the testamentary disposition of property and is denied, the subsequent execution of a will which is inconsistent with the terms of the alleged contract is entitled to consideration as tending to show the improbability of such contract having been made. Eidinger v. Mamlock, 138 Wash. 276, 244 P. 684. Hence these contentions are untenable.

Another error claimed by appellant is in requiring appellant to furnish respondents the names of her witnesses.

No prejudice is shown thereby, and such an order, if erroneous, cannot be considered prejudicial.

Eighteen other errors are claimed by appellant, going generally to the findings and conclusions made by the court, and to the findings and conclusions submitted by appellant and rejected by the court.

The principal issue to be determined is whether or not the contract alleged by appellant was, in fact, made by decedent. The making of the contract and its nature was testified to principally by Rose Lanthaler, a daughter of appellant, who resided with her; appellant, of course, being disqualified from testifying under our statute.

The substance of the direct testimony of the daughter is 'Appellant is her mother. She knew John W. Simpson in his life time. She became acquainted with him first on a visit to his house, in August, 1928. She saw him afterwards at his house and at their house, on an average of five or six times a week. He would come there about twelve (noon) and stay until about two in the morning, most of the time. He played cards there in the evening and visited. Joe Simpson called for him there when he wasn't able to drive his car after he had his second stroke. She saw her mother at Simpson's home. When he was sick her mother would go over there. She saw her mother over there many times; she would visit with him. Her mother would make an eggnog once in a while. She saw her mother cut his hair, give him a bath, shampoo his hair and do everything in her power for him. She cooked for him, gave him all his meals when he was at their house. He would eat there about three times a day. At noon time he would come when we were eating and join us; and then he would have the evening meal with us and always a lunch at night Before he went home. He ate very, very heavy. He was an old man then; I think, 76. I saw my mother give him vibrator treatments. She took him to one doctor and a masseur. These acts commenced shortly after she met him and continued almost daily. I was living at my mother's home. My mother sewed for him, made him nightshirts, and mended his top shirts. She pressed his clothes, washed his face and hands and gave him his bath. She played cards with him; she permitted him to come to the house every day; and looked after his general health. When he was sick at times, when he was stricken and was ill, she would bring him soup over to his house when he wasn't able to come to our house and puddings and eggnogs. She would assist him personally in regard to his person. I went on automobile trips with him and mother very frequently, mostly in our car. I went in his car a few times. Mother supplied the gas in our car. He had paralytic strokes, first, in January, or February, 1930 and another in May. He had the first stroke in our home. His right arm went paralyzed and she took his coat off and rubbed and massaged it. I was not present when he got this stroke. I saw him more or less paralyzed during May. He was more or less paralyzed up until he had the last stroke in October. I saw him the Sunday Before he died. I heard the conversation between them in January, 1929, in the presence of Carl Ohliger, mother and myself. The substance of that conversation was, he told mother 'if she would continue her services to him as she had in the past that he was going to give her everything, and he asked her if she would, and she accepted him'; he said, to the end of his life. He said he had no one in the world that cared for him or took any interest in him at all or cared whether he lived or died, but her. He said he wanted her to have everything, that he was going to make another will. He had a will and he was going to destroy it. He made a will in Joe's favor which he said he wanted to destroy and later said he did destroy that will. The general trend of the conversation that evening was if she would continue to cut his hair, take good care of him like she had in the past, continue bathing him and watching over him as she had, he wanted her to have everything, he had no one else to care for him. He wanted mother to have everything. He was getting old and he felt he could do just as he pleased with his money and he was going to give it to her. She said 'I will continue to give you the services that you request' and that she would do all she could for him. At that time he spoke of Joe and said he didn't want to leave Joe anything, that Joe wasn't good to him and didn't care if he lived or not; didn't take any interest in him. He repeatedly mentioned the contract and said he was going to give her everything when he died. He spoke of the will he had made in favor of Joe very often and said he was going to destroy it and make another one. In the summer of 1930, he said he had destroyed the will. I heard Joe swear at John W. Simpson and call him a name. Subsequent to January, 1929, I heard John W. Simpson express his feeling towards Mrs. Lohse, (Appellant). He said she was all he had in the world, that if she would continue her services he wanted her to have everything and said he was satisfied and contented with the way she was acting and treating him. I saw John W. Simpson first during his last illness the Sunday he lived. I took mother over there a couple of days Before that on Friday. Mr. Anderson and Joe met us at the door. Mr. Simpson was in bed up in his bedroom. We wanted to go up and see Mr. Simpson and they did not want us to. They told us not to go up. They said Mr. Simpson was...