Malloy's Estate, In re
| Decision Date | 19 January 1961 |
| Citation | 358 P.2d 801,57 Wn.2d 565 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the ESTATE of Mary A. MALLOY, Deceased. Fred J. SCHNEIDER et al., Appellants, v. May CAMPBELL et al., Respondents. No 35404. |
Joseph T. Pemberton, Bellingham, for appellants.
Abbott, Lant & Fleeson, Bellingham, William A. Gardiner, Ferndale, for respondents.
This is a will contest. The action, brought by collateral heirs of the testatrix, resulted in a decision upholding the will.
Mary A. Malloy died on May 8, 1957, at the age of ninety-three. Her last will was executed February 8, 1956, and a codicil thereto was executed September 6, 1956. Both instruments were drawn by a Bellingham attorney. The will contained bequests of $100 to each of anmed nephews and nieces, among whom were the petitioners in this action, a $500 bequest to the Whatcom County Orthopedic Association, a $300 bequest to the St. Joseph's Carmelite Monastery, in Seattle, and a $500 bequest to be held in trust for the education of Robert Swan. The testatrix named three relatives of her deceased husband and William P. Swan, a friend, to share the residue of her estate. The will provided that, in the event of the prior death of any of these residuary legatees, the share of such legatee should be divided equally between the two charitable organizations previously named. William P. Swan was named executor. The will was admitted to probate on June 19, 1957.
By codicil of September 6, 1956, the testatrix provided for the division of the residue among two of the relatives of her deceased husband and William P. Swan, the fourth residuary legatee having died after the execution of the will.
The contentions of the petitioners were that the will and the codicil were executed at times when Mary A. Malloy lacked testamentary capacity and that they were obtained through the undue influence of William P. Swan. The trial court found that neither of these contentions was proved.
The record amply sustains the trial court's findings that Mary A. Malloy, at the time of the execution of the will and codicil, was of sound and disposing mind and memory and was then able to comprehend the nature of the business she was transacting, the extent of her property, and the natural objects of her bounty; that she was competent to transact her business, and to execute a will or other instrument disposing of her property and that she executed the will and codicil as her own intentional and voluntary act and deed, free of undue dominion and control on the part of William P. Swan, or any other person.
The petitioners base their appeal upon two errors of law which they contend the court committed. The first of these was in refusing the admission of testimony of three of the heirs concerning statements made by the testatrix to them. They recognize that this court has held that RCW 5.60.030, commonly known as the dead man statute, applies to will contests and forbids a party in interest to testify in his own behalf as to any transaction had by him with, or any statement made to him or in his presence by, the deceased. This rule is set forth in In re Wind's Estate, 27 Wash.2d 421, 178 P.2d 731, 173 A.L.R. 1276, overruling In re Findley's Estate, 199 Wash. 669, 93 P.2d 318, and distinguishing In re Anderson's Estate, 114 Wash. 591, 195 P. 994.
In the latter case, this court held admissible testimony by a party in interest concerning the mental capacity of the deceased. Some of this testimony related to conversations with the deceased. In In re Wind's Estate, supra, this court stated that the decision in Anderson's Estate was proper insofar as it pertained to the witness's knowledge of the mental condition of the testator because 'the mental condition of an individual could not be termed a transaction with one since deceased.' [27 Wash.2d 421, 178 P.2d 735]. We did not comment upon the applicability of RCW 5.60.030 where there is an attempt to prove the mental capacity of the testator, or his lack of it, by statements made by him to the witness, or in his presence. It would appear that the language of the statute, to which this court gave full effect in In re Wind's Estate, supra, would exclude such testimony.
However, we do not find it necessary to pass upon the question at this time. The offers of proof made by the petitioners tended to show merely that the testatrix was subject to occasional lapses of memory, which are common to persons of her age. They would not support a finding that she lacked testamentary capacity when she executed her will, either standing alone or when taken in conjunction with all of the other testimony. Even assuming that the testimony was admissible, its exclusion was harmless.
There is likewise no merit in a contention made by the petitioners that the respondents waived the right to invoke the statute as to these witnesses by failing to object when the petitioner's attorney questioned Mr. Swan about conversations which he had had with the deceased. A waiver as to one transaction or conversation does not extend to unrelated transactions and conversations. Carter v. Curlew Creamery Co., 16 Wash.2d 476, 134 P.2d 66. The proof offered by the petitioners did not pertain to any transactions or conversations about which Mr. Swan testified.
The second error alleged by the petitioners concerns the trial court's evaluation of the evidence. Again, they concede that one contesting a will which has been admitted to probate has the burden of proving the illegality of the will by evidence which is clear, cogent, and convincing. But they insist that there is evidence in this case which is sufficient to cast upon the respondents the burden of sustaining the validity of the will, under the rule laid down in Dean v. Jordan, 194 Wash. 661, 79 P.2d 331, 335, wherein we said:
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Table of Cases
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