Riley's Estate, In re

Decision Date31 December 1970
Docket NumberNo. 39235,39235
Citation479 P.2d 1,78 Wn.2d 623
Parties, 48 A.L.R.3d 902 In the Matter of the ESTATE of M. Josephine RILEY, aka M. Josephine Reilly, Deceased. Frances Reilly ESTILL and John Reilly, Respondents and Cross-Appellants, v. SISTERS OF CHARITY OF the HOUSE OF PROVIDENCE and Richard J. Corrigan, Administrator de bonis non, Appellants.
CourtWashington Supreme Court

Bogle, Gates, Dobrin, Wakefield & Long, Thomas L. Morrow, William M. Gingery, Seattle, for appellants.

Ferguson & Burdell, W. Wesselhoeft, John R. Stair, Seattle, for respondents.

DONWORTH, Associate Justice. *

This is an appeal from a judgment entered July 25, 1966, by the superior court in a will contest in which the purported will of Miss M. Josephine Reilly executed May 8, 1964, was declared to be invalid because of lack of testamentary capacity and also undue influence.

In order to decide the important issues presented by this appeal, it is necessary to consider in some detail the background The trial lasted 4 weeks. A total of some 60 witnesses testified. Of these, 12 testified by deposition and did not appear in court. Three other witnesses answered written interrogatories propounded to them. The statement of facts contains nearly 2,500 pages and shows that approximately 175 exhibits were admitted in evidence.

of this controversy, the parties involved, and also the personal history of the testatrix.

The testatrix (herein referred to as Miss Reilly) was born in Chicago in 1887. Her father, Dr. Joseph Reilly, was a prominent physician there. Her mother died shortly after her birth. From her early childhood Miss Reilly resided at No. 4922 Kenmore Avenue in Chicago with a Miss Barrington who was her friend and constant companion until Miss Barrington's death in Seattle in 1953.

Dr. Reilly maintained his office for the practice of medicine in another part of Chicago. He also had living quarters in that locality. It was his custom to be away from the Kenmore Avenue house except for weekends. After he retired from the active practice of medicine shortly before his death, he lived with his daughter continuously. He died in May, 1928.

Dr. Reilly had previously been married and divorced. That marriage produced a son, Frank C. Reilly, who was brought up in Philadelphia by his mother's family and did not reside in Chicago. He was the father of the contestants and also of their sister, Mrs. Glore. He died in 1945.

Miss Reilly was educated in private schools and spent a summer traveling in Europe. She was an accomplished musician and played both the harp and the piano. She also was thorough and accurate in keeping accounts of her investments, the annual net income produced thereby being approximately $35,000 per year.

Miss Reilly was quite secretive concerning her financial and personal affairs and seldom discussed such matters even with her close personal friends. All of the ladies who knew her well both in Chicago and Seattle testified that she had a strong mind and was not easily influenced. When she Attached to this opinion is an Appendix listing witnesses who testified regarding Miss Reilly's personality and character, with a brief excerpt from the testimony of each.

had made up her mind to do something, according to the Greven sisters' deposition, her motto was 'Do it now.'

After her father died in 1928, Miss Reilly and Miss Barrington continued to live in the Kenmore Avenue home until 1931, when they sold the house and went to San Diego. After living there a while they moved to Texas and later to Denver. In 1935 they came to Seattle where they lived at the Camlin Hotel.

After Miss Barrington died in 1953, Miss Reilly continued to live there alone. In the summer of 1963, she consulted Dr. Joseph J. Reilly of Seattle who was no relation to her or her deceased father, although the names of the two doctors were almost identical. Dr. Reilly had previously treated Miss Barrington and had met Miss Reilly in that connection. Dr. Reilly had treated Miss Reilly professionally in 1955 and 1959.

At the time in 1933 when she consulted Dr. Reilly, she had a swelling of the glands in her neck. He diagnosed this as Hodgkin's disease and called in Dr. Chism who operated on Miss Reilly at Providence Hospital. The pathological report showed malignant lymphoma. She was discharged from the hospital on September 6, 1963.

Miss Reilly returned to the Camlin Hotel, and on November 3 she fell in her room at night. Dr. Reilly saw her the next day and found that she had had a very serious episode, so he sent her to Providence Hospital by ambulance. The doctor diagnosed her fall as being caused either by a slight stroke or that the circulation of blood to the heart muscle had been impaired. Miss Reilly's condition improved and she wanted to go back to the Camlin. Dr. Reilly sent her to the Medical-Dental Building Hospital for a while. She was discharged on November 11. She was supposedly going to move from the Camlin to Mount Saint Vincent's on the following day, but she did not do so until January 7, 1964.

Dr. Reilly continued to see her frequently while she was After her father's death, Frank C. Reilly, his son, who was a half brother to the testatrix and the father of the contestants, instituted an action against her in Chicago which is described at some length below.

a guest at the Home. His testimony as to her condition while in the Home will be referred to later.

The charitable corporation which was named as the sole legatee in Miss Reilly's will was incorporated more than 100 years ago by the Sisters of Charity, an order of Catholic nuns. The corporate name was the Sisters of Charity of the House of Providence in the Territory of Washington. After Washington became a state the words 'now State' in parenthesis were added to the corporate name.

This corporation now owns and operates hospitals in every large city or town in the state. In 1924 it constructed St. Vincent's Home for the Aged in West Seattle and has operated it ever since. Recently it has been called Mount St. Vincent's Home.

While the home is known as a Catholic institution, it should be emphasized that the Corporation of the Catholic Archbishop of Seattle (a corporation sole), which owns all church properties in western Washington, has no legal interest in the Home or in any other property owned by the charitable corporation.

THE CHICAGO LITIGATION

In considering the question of the naturalness of Miss Reilly's will, we should have in mind her experience with her half brother (the father of the contestants) when she was sued by him shortly after their own father (Dr. Joseph Reilly) died in Chicago in 1928. In his will Dr. Reilly bequeathed all his property to his two children (Miss Reilly and her half brother) in equal shares. On April 16, 1929, her half brother, Frank C. Reilly, filed in the Illinois State Court for Cook County a bill of complaint charging Miss Reilly with embezzling certain stocks belonging to their father's estate with intent to defraud the half brother of his one-half interest therein. This bill of complaint is some 14 pages in length and is too long to set forth herein. It was The prayer of the complaint was for an accounting by Miss Reilly with respect to these matters, that a receiver be appointed to take possession of the money and securities referred to, and that she be enjoined from transferring or otherwise disposing thereof.

alleged that said stocks were then of the value of more than $100,000. The complaint also contained detailed allegations regarding the misuse by Miss Reilly of the money in a joint bank account maintained by her and their father at the time of his death, and also stated that the Kenmore Avenue home in Chicago (which had stood in Miss Reilly's name for many years) really belonged to their father's estate. It was further alleged that during the last years of his life while Dr. Reilly was living with his daughter, he was senile and that Miss Reilly had control of his assets and dominated his affairs.

Miss Reilly answered the bill of complaint filed by her half brother, denying most of the material allegations of the bill. Her answer was also about 14 pages in length. She alleged that the corporate stock referred to was given to her by their father during his lifetime, that the joint bank account consisted mostly of her own earnings, and that she had purchased the home on Kenmore Avenue with her own money. She specifically denied the existence of any fiduciary relationship with their father in connection with their father's property. She also denied that Dr. Reilly was senile prior to his death and alleged that she acted only as an errand boy in carrying out his instructions.

This litigation was eventually settled by Miss Reilly's paying her half brother $40,000. They each received $14,900 from their father's estate. She retained her ownership of the Chicago home and the securities (her net value thereof after the payment of $40,000 being about $60,000).

The effect of this litigation upon Miss Reilly is described in the deposition of the two Greven sisters who lived very near her home in Chicago. They saw her almost daily between 1917 and 1931 when Miss Reilly left Chicago for the West. Miss Adophine Greven testified as follows:

Q Did she make any statements concerning her relatives Miss Florence Mollan, another neighbor and close friend of Miss Reilly who saw her daily in Chicago between 1924 and 1931, testified by deposition that when the litigation was pending Miss Reilly came to deponent's home 'in great fear and terror' and 'poured her heart out' to deponent and her mother. Regarding threats made to Miss Reilly by her half brother at that time Miss Mollan testified:

while she was in Chicago? A Well, at that time, after her father died, she came to us and she was upset, but not overly so, as much as anyone would be upset when somebody contests the father's Will; she said to us, 'I am in trouble', ...

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