Peters' Estate, In re

• Decision Date: 16 December 1953
• Docket Number: No. 32514,32514
• Citation: 43 Wn.2d 846,264 P.2d 1109
• Parties: In re PETERS' ESTATE.
• Court: Washington Supreme Court

Page 846

43 Wn.2d 846

264 P.2d 1109

In re PETERS' ESTATE.

No. 32514.

Supreme Court of Washington, Department 2.

Dec. 16, 1953.

Eggerman, Rosling and Williams, Joseph J. Lanza, Seattle, for appellant.

Abrams, McCush & Rinker, Bellingham, for respondents.

HAMLEY, Justice.

This is a proceeding to contest the lost or destroyed will of Fred O. Peters. He died in Bellingham, Washington, on May 21, 1951, at the age of seventy-one years. He was a widower at the time of his death, and left surviving him a daughter, Mildred Hall, a son, Clifford G. Peters, four brothers, William G., Charles A., Howard W., and Dr. John H. Peters, and three grandchildren.

Mildred Hall is the contestant, and is supported in her position by her brother, Clifford G. Peters. The will is defended by the four brothers of decedent, and by Bellingham National Bank, which is administrator with the will annexed. The will is contested on three grounds, namely: (1) The provisions of the will were not proven by two witnesses from their own personal knowledge; (2) lack of testamentary capacity; and (3) undue influence. The trial court rejected all three grounds, and entered a decree dismissing the petition with prejudice. Contestant appeals.

Decedent was engaged in the real estate business in Bellingham for many years. In 1941, his marriage terminated in divorce. From then until December, 1948, except for a two-year period when he shared his home with a friend, Lyle Gandy, decedent lived alone. In 1945, he retired from his business on account of his health. He was suffering principally from the effects of syphilis contracted in early manhood, but also had arthritis and perhaps other ailments. A clinical examination made by Mason Clinic in Seattle, in April, 1945, showed that decedent was suffering from cerebral spinal syphilis, active and progressive.

After two fainting spells in November and December, 1948, decedent was taken to St. Francis hospital, in Bellingham. He remained there until his death two and a half years later, except for three or more sojourns in St. Luke's hospital, in Bellingham, while receiving surgical or special medical attention.

For the last several years of his life, all of decedent's deposited funds were maintained in joint bank accounts with his son Clifford. The son also had custody of decedent's jewelry, and was in general charge of his father's affairs. Clifford and his sister Mildred testified that they visited decedent at the hospital whenever practicable. Their father, however, complained to others that they did not visit him as much as they should have, and that the son was unco-operative in other respects. Decedent at no time discussed with them his plan to make a new will, replacing a hand-written will which he had executed in 1942 (but which did not come to light until after his death). Decedent did, however, mention to some of the nurses and friends who called to visit him that he was planning to make a will.

The will was prepared in March and April, 1951, by George Livesey, Sr., an attorney in Bellingham, who had represented decedent at infrequent intervals for many years. Livesey went to the hospital on this matter in response to decedent's telephoned request. At the first conference between them, decedent gave Livesey a typewritten memorandum containing a description of several parcels of real property. He also gave Livesey a typewritten memorandum, which had been prepared by Clifford, listing decedent's bank accounts and other assets, and placing a value on each item. Decedent told Livesey at that meeting how he wanted the property disposed of.

A draft of the will was prepared, and Livesey read it to decedent during a second visit. Decedent then noticed an error in a description of one of the parcels of real estate mentioned in the will, whereby reference to a certain sixteen-foot strip of land had been inadvertently omitted. One or two more drafts were thereafter prepared. George Livesey, Jr., who is associated with his father in the practice of law, accompanied his father on one of these trips to the hospital. Decedent's brother John testified that he was given one of the drafts of the will and went to the hospital and read it to decedent two or three times, but made no suggestions of his own.

George Livesey, Sr., and a nurse were the only witnesses to the execution of the will on April 14, 1951. At this final session, Livesey advised decedent that Clifford ought to be dealt with more generously. Recalling that his brother Howard was the beneficiary of decedent's $5,000 life insurance policy, decedent then asked Livesey to shift a $5,000 bequest from Howard to Clifford. This was done by interlineation.

After the will was executed, decedent gave it to Livesey, who retained it until after decedent's death. Livesey testified that he delivered the will to Clifford on June 21, 1951. Clifford denied this, and failed to produce the will in response to a court order. John thereupon petitioned the court for an order admitting to probate, as a true copy of decedent's lost or destroyed will, a document attached to the petition as an exhibit. After a hearing, a decree was entered admitting such document to probate as decedent's will.

Regarding decedent's testamentary capacity on April 14, 1951, when the will was executed, testimony was given by two doctors, four nurses and fourteen lay witnesses. It will not be practicable here to indicate more than the general purport of this testimony.

George Livesey, Sr., George Livesey, Jr., and John, all of whom testified that they were present during one or more of the conferences with decedent regarding his will, expressed the opinion that he had testamentary capacity at those times. The nurse who was the other subscribing witness was not called to testify in the instant proceeding.

Two doctors, both called by appellant, testified as to decedent's mental competency. One of these was Dr. Lyle A. Greenwood, of Bellingham, who had been treating decedent at intervals since the 1920's for his syphilitic condition. Dr. Greenwood devotes his time principally to internal medicine and general practice. The other doctor who testified was Dr. Wayne W. C. Sims, of Seattle. He specializes in dermaology and syphilology.

Both doctors diagnosed decedent's condition as general paresis of the insane. This is one of the later manifestations of syphilis. Persons so affected suffer a cellular destruction of brain tissue which brings about a gradual deterioration in the mental faculties. As a result, such individuals lose their memory, especially as to recent events; their judgment is weakened; they become more 'suggestible'; they are apt to make mistakes in business, to squander their assets, and to make impulsive decisions.

It was Dr. Sims' opinion that, in April, 1951, decedent did not have sufficient mental capacity to know in detail and at one time the extent and nature of his property. Dr. Sims thought that decedent might be able to remember his relatives and the natural objects of his bounty on one day, and might not be able to do so the next day. In this connection, the witness remarked: 'Syphilis can fool us occasionally.' Dr. Sims thought it would be 'physiologically impossible' for decedent to understand a four-page will which was read to him.

Dr. Sims had never seen decedent. His opinion testimony was based exclusively upon the fact that the 1945 report of Mason Clinic showed progressive paresis, and that death occurred six years later at the age of seventy-one years, decedent having lost his vision in the meantime. The hypothetical question to which he responded did not take into consideration any facts regarding decedent's physical condition (other than loss of vision), acts, or conduct, between 1945 and 1951.

Dr. Greenwood's opinion as to decedent's mental competency to make a will was based not only on the Mason Clinic report, but also on personal knowledge gained over a long period of time as decedent's physician. As tending to support the opinion which he expressed, Dr. Greenwood stated that, towards the end, decedent was not interested in his surroundings, and was either asleep or 'dopey' a good deal of the time, apparently due to an excessive use of sleeping tablets. He also referred to an occasion when decedent indicated a desire to give away some of his less valuable diamonds to persons outside the family. Dr. Greenwood testified that he was always recognized by decedent when a hospital call was made.

It was Dr. Greenwood's testimony that decedent was not mentally sound during the period of hospitalization. He did not, however, express a categorical opinion that decedent lacked testamentary capacity during all of that period, or on the day on which the will was executed. In the main, he merely questioned or doubted decedent's mental competency. Typical of his testimony in this regard is the following:

'Q. [Direct examination] Doctor, can you say that, at any time during the period of his hospitalization, he was of sound mind? A. Well, my opinion in these cases is that an individual who has this type of spinal fluid, his actions are always subject to scrutiny and question because at some time his behaviour is going to be abnormal. Otherwise, this disease would not be called general paresis of the insane, so I feel that his acts are subject to question. * * *

'Q. Do you feel that he was mentally sound during that period of hospitalization? A. I don't think he was mentally sound, no.

'Q. Do you think he could have been mentally sound at any time during that period? A. That is a question. I don't know, but I feel that, from 1948 on, his condition is such that any of his acts are subject to very close scrutiny, as to whether they represented what he would want to do if--oh, twenty years before.

'Q. Well, do you think such an individual as Mr. Peters, suffering from that disease in the terminal stages, could possibly have retained the memory of his...