Nikiporez's Estate, Matter of

• Decision Date: 08 February 1978
• Docket Number: No. 1974-III,1974-III
• Parties: In the Matter of the ESTATE of Timofei NIKIPOREZ, Deceased. James VICKERS, Individually and as executor and personal representative of the Estate, Appellant, v. Evdokia Korneevna NIKIPOREZ, Respondent.
• Court: Washington Court of Appeals

Page 231

19 Wn.App. 231

574 P.2d 1204

In the Matter of the ESTATE of Timofei NIKIPOREZ, Deceased.

James VICKERS, Individually and as executor and personal representative of the Estate, Appellant, v. Evdokia Korneevna NIKIPOREZ, Respondent.

No. 1974-III.

Court of Appeals of Washington, Division 3, Panel One.

Feb. 8, 1978.

Rehearing Denied March 3, 1978.

Benjamin N. Brunner and Elwood Hutcheson, Yakima, for appellant.

E. F. Velikanje, Velikanje, Moore & Shore, Yakima, for respondent.

McINTURFF, Judge.

James Vickers, as personal representative and sole beneficiary of the estate of Timofei Nikiporez, appeals from an award in lieu of homestead to Evdokia Nikiporez who, the court found, was the surviving spouse of decedent.

While much of the evidence produced at trial is alleged to be inadmissible, if properly presented and accepted, it would support the following. The decedent was born in Russia, and in 1921 he married Evdokia Nikiporez in a church ceremony at the village of Riedychev. Their marriage was registered on May 19, 1923, in the Ukraine. He was drafted into the Russian army and left home for the front in August 1943. Apparently he was captured on the Russian front and via a prisoner of war exchange, he arrived in the United States, settling in the picturesque Yakima Valley.

He never returned to Russia nor did his wife join him in the United States. In fact, she did not hear from him until about 1962 when he wrote to her. Neither party sought a divorce, and they communicated by letter, the last written in 1970. During that time he sent her money, parcels and photographs. In a letter dated January 2, 1970, he wrote, "From your husband Timofey Zakharovich good day my wife Evdokia." About that time he also sent her $1,000.

The decedent and Mr. Vickers, who was his neighbor for about eight years, were friends. In May 1965 when he needed a place to live, decedent bought from Mr. Vickers some land upon which he built a home where he lived until his death in 1973. He was grateful for the land sale and promised to name Mr. Vickers his sole beneficiary.

On January 20, 1966, he fulfilled his promise by executing a will, leaving his estate to Mr. Vickers and appointing him executor. The will was admitted to probate, and Mr. Vickers' appointment as executor was confirmed. The will said, "I hereby state that I am not married and I have no child or any lineal descendant." All but one witness testified that on numerous occasions decedent told them his wife had died in Russia and that he had no living wife or child.

Olex Juchta, a rebuttal witness who lived with decedent at one time, testified that decedent had shown him a photo of a woman and identified her as his wife. The photo was admitted over objection by the estate.

The court found Evdokia Nikiporez was the surviving spouse of decedent and that no homestead had earlier been declared. After ordering all funeral costs and expenses of last sickness and of administration be paid, the court awarded to her $15,000 in lieu of homestead from the balance of the estate.

Mr. Vickers contends the court erred (1) in making several evidentiary rulings and (2) in making the award to Evdokia Nikiporez.

First attacked is the admission of two interrogatories directed to Evdokia Nikiporez. Mr. Vickers argues they are inadmissible because they were not sworn to. On one she said, "Let it be known to all, that I, . . . solemnly state, that I give true/correct testimony to the questions in the enclosed interrogatories . . ." On the other, she said, "Let it be known to all, that I, . . . Solemnly state that I give true/correct replies to the enclosed interrogatories. . . ."

The requirements for oaths and affirmations are set out in RCW 5.28. ¹ RCW 5.28.060 provides in pertinent part, "Whenever an oath is required, an affirmation, as prescribed in RCW 5.28.050 is to be deemed equivalent thereto, . . ." RCW 5.28.050 provides:

Any person who has conscientious scruples against taking an oath, may make his solemn affirmation, by assenting, when addressed, in the following manner: "You do solemnly affirm that," etc., as in RCW 5.28.020.

In turn, RCW 5.28.020 provides, regarding the oath administered to someone other than a witness giving testimony, ". . . the form may be changed to: 'You do solemnly swear you will true answers make to such questions as you may be asked, etc.' " These statutes were given a liberal interpretation in State v. Collier, 23 Wash.2d 678, 694, 162 P.2d 267, 275 (1945), where the court, after referring to § 6 of article I of the state constitution, ² said:

This constitutional provision gives a wide discretion as to the mode of administering an oath. The administering officer is, in fact, commanded to employ that mode which he believes will be most binding upon the conscience of the witness. It is clearly not within the power of the legislature to prescribe a set form and require its use in every instance, and, in our opinion, it has not attempted to do so.

See also In re Ross, 45 Wash.2d 654, 655, 277 P.2d 335 (1954).

We note also that Article 20(3) of the Consular Convention and Protocol between the United States and Russia provides:

Whenever under the laws of the receiving state an oath is required to be taken in court by consular officers and employees of the consular establishment, an affirmation shall be accepted in lieu thereof.

Thus, we find the statement of solemnity contained in the questioned interrogatories equivalent to the generally used oath and affirm their admission.

Error is next assigned to the admission of the Nikiporez marriage certificate. Mr. Vickers contends there was no pleading or proof of Russian law to establish the requirements of a valid marriage or the authenticity of a marriage certificate. The record indicates the certificate was authenticated by the provincial director of archives who stated he was its legal custodian. His authentication was confirmed by the chief of the state department of archives whose authentication was confirmed by the national director of the department of consular administration whose authentication was confirmed by the United States vice consul. Under CR 44(a)(2), the qualifications for admissibility of the document have been met. Thus, we find no error.

Mr. Vickers also assigns error to the court's exclusion, under RCW 5.60.030 (the dead man's statute), of his testimony regarding statements made by decedent to him to the effect decedent had no wife or children. We note, first, that a thorough review of the record shows this testimony was introduced subject to the court's ruling on the applicability of the statute. Though the court never decided the matter, it referred several times in its oral opinion to similar statements. Under those circumstances, Mr. Vickers cannot complain of the alleged error. ³

Mr. Vickers argues strenuously that, assuming the admissibility and truth of all the evidence, the court erred nonetheless in making its award to Mrs. Nikiporez. He contends the homestead statutes are not applicable to marital situations such as this. First, he says we should consider the Nikiporez marriage a mere hollow shell and no longer legally viable. After 30 years of separation, there can be "no will to union," and all property rights based on a marital relationship must, in effect, be terminated. Secondly, he argues that since our homestead statutes are calculated to prevent dependency of the deceased's family, they do not encompass a marriage where the surviving spouse will not, in fact, be dependent upon this state.

The lack of the widow's contacts with this forum and her lengthy separation from the deceased would, indeed, seem to preclude her recovery of the award in lieu of homestead. The underlying principles of the statutory framework appear inapplicable. However, because of a long line of unquestioned Washington precedent, we are constrained to affirm the court's award to Mrs. Nikiporez.

The homestead allowance under RCW 11.52.010 ⁴ has always enjoyed a high priority in Washington law and is preferred as are other debts against the estate. In re Estate of Boston, 80 Wash.2d 70, 75, 491 P.2d 1033 (1971). The statutes creating the award have been considered to give an absolute right to the surviving spouse to the statutory sum. In re Estate of Welch, 200 Wash. 686, 94 P.2d 758 (1939). The surviving spouse is entitled to the award when he or she complies with all of the conditions contained in the statutes. Cody v. Herberger, 60 Wash.2d 48, 371 P.2d 626 (1962).

Nonetheless, several recent cases have suggested that where husband and wife have permanently separated without an intent to reunite, one spouse may not claim benefits of the community relationship against the other. ⁵ Representative of those cases is In re Estate of Osicka, 1 Wash.App. 277, 461 P.2d 585 (1969), where the court found that by their conduct the husband and wife had in effect renounced the marital relationship and were not entitled to receive the award in lieu of homestead from the deceased spouse's estate. There the parties had never lived together in this state or any other community property state. They were separated for nine years prior to the husband's death under an agreement to live separate and apart. The agreement released each of them from the obligations of support or alimony for the other. Under those circumstances, the court concluded the parties no longer had a "will to union," and as a result the widow could not claim the award in lieu of homestead from her husband's estate.

For two reasons, the "shell of a marriage" ⁶ cases are not applicable here. First, there is evidence the Nikiporez couple had a desire to reunite but was kept from doing so by physical infirmities. ⁷ Where there is a "will to union," cases such as Osicka are distinguishable. Secondly, the homestead statutes have been recently amended. Until 1967, the award could be made only from the community property of...