Smith's Estate, In re

• Decision Date: 03 March 1966
• Docket Number: 38020,Nos. 37936,s. 37936
• Citation: 411 P.2d 879,68 Wn.2d 145
• Court: Washington Supreme Court
• Parties: , 19 A.L.R.3d 559 In the Matter of the ESTATE of Guy L. SMITH, Deceased.

Page 145

68 Wn.2d 145

411 P.2d 879, 19 A.L.R.3d 559

In the Matter of the ESTATE of Guy L. SMITH, Deceased.

Nos. 37936, 38020.

Supreme Court of Washington, En Banc.

March 3, 1966.

Rehearing Denied May 19, 1966.

Opinion Corrected by 416 P.2d 124.

Sherwood, Tugman & Green, William M. Tugman, Walla Walla, Helsell, Paul, Fetterman, Todd & Hokanson, Richard S. White, Seattle, for appellant.

Walthew, Warner & Keefe, John F. Walthew, Mont Clair Spear, Casey & Pruzan, Carl Pruzan, Seattle, for respondent.

WEAVER, Judge.

This is an action contesting the September 22, 1961 will and the January 30, 1962 codicil of Guy L. Smith, who died May 20, 1963, sixteen days before his eightieth birthday.

Some twenty individuals are involved. Insofar as we need classify the parties, we designate them (1) contestants, (2) intervenor, and (3) proponents.

The contestants are decedent's sister, two nieces and a grandniece. Under the will they were to receive $18,000 each, but this sum was reduced to $10,000 each by the codicil. Virginia Burnside, a niece of Smith's deceased wife, is the intervenor. Although a named legatee in the prior will of decedent (1960 will), she does not share under the present will and codicil. Her two sons, however, Robert and Gregory, are bequeathed $5,000 each. By virtue of a post-trial agreement, the position of contestants and intervenor is identical on appeal. ¹

Proponents of the will and codicil fall into two classes: (1) a brother-in-law and his wife who receive $8,000; eight friends who receive a total of $9,000; Della Canning (Zieske), a friend who is bequeathed $43,000 (specific bequests to all parties total $120,000); and (2) Lewie Williams, testator's lawyer, and executor, who is to receive 80% Of the remainder, and Marie Sharp Afflerbaugh, Williams's secretary since 1951, who is to receive 20% Of the remainder.

The decree of the trial court held void that portion of decedent's will and codicil which conferred any benefit upon Lewie Williams (except his appointment as executor) and Marie Sharp Afflerbaugh 'by reason of the undue influence of the said Lewie Williams and Marie Sharp Afflerbaugh.' The court otherwise confirmed as valid all other provisions of the will and codicil.

Proponents, Lewie Williams and Marie Sharp Afflerbaugh, appeal from the decree canceling their remainder; Williams cross-appeals from an 'Order Allowing Executor Certain Expenses.' Contestants and intervenor appeal, urging that the will and codicil should be invalidated in their entirety and no expenses allowed the executor. Were it not for the post-trial agreement between them, this unity of purpose would not exist. There is no appeal by those we have designated as the first category of proponents; the trial court's decree does not disturb their bequest. Della Canning (Zieske) has, however, appeared as a respondent urging either that the will and codicil be upheld or that the court correctly applied the doctrine of partial invalidity of wills. Either theory would validate her $43,000 bequest. She is not a party to the post-trial agreement for distribution of the estate.

The trial consumed five days; it left few stones unturned. Thirty-four witnesses testified, six by deposition. The size of the appellate record ² is commensurate with the value ³ of the estate involved.

Guy L. Smith (decedent) and Lewie Williams were close personal friends, classmates, and members of the same college fraternity at the University of Washington in 1906. Mrs. Williams and Mr. Smith, both pharmacy students, were well acquainted in college.

Smith and Lenna Elzey were married in 1914. They moved to Alaska where they owned and operated drug stores. The size of their estates indicates that they were eminently successful. They moved to Seattle in 1944 where they continued their longstanding friendship with the Williamses.

In 1944 the Smiths executed a community property agreement. In 1958 they executed wills confirming the community property agreement and providing that in the event of simultaneous deaths their property should pass one-half to certain designated relatives of Mr. Smith and one-half to certain designated relatives of Mrs. Smith. In 1960, the Smiths executed new wills naming each other as principal beneficiary and designated relatives of each as contingent beneficiaries. Lewie Williams, who had drafted the wills, was named executor in the 1958 wills and contingent executor in the 1960 wills. He was designated in all the wills as 'my friend and attorney.'

Mrs. Smith died October 4, 1960. Mr. Williams, as attorney, filed the 1944 community property agreement and cleared the estate of inheritance tax liability. The inheritance tax return signed by Mr. Smith on December 30, 1960 discloses an estate valuation of $226,217.66, composed almost entirely of listed corporate stocks.

After the death of Mrs. Smith, Williams and Smith became even closer friends. It would unnecessarily extend this opinion to set forth the details of their personal relationship. It is sufficient to mention that they were constant companions; that they had lunch together at least four out of every five week days, eating at the same table in the same restaurant, alternating daily on the payment of the luncheon bill; that the switchboard operator in the apartment where Mr. Smith lived testified that she placed calls to Mr. Williams from Mr. Smith every day; that she had instructions to telephone Mr. Williams in case of need; that when Mr. Smith was in the hospital for five days in 1961 because of hiccoughs, the admission chart shows: 'Name of nearest relative or friend: Lewie Williams.'

Mrs. Williams testified:

If he (Smith) didn't have an invitation out for the week-end, we always tried to see him because we didn't want to leave him alone in his apartment, you know, over the week-end. He was lonely.

There is ample evidence in the record to support the trial judge's observation that

there was a great bond of love and friendship between Mr. Williams and the testator.

September 22, 1961, Mr. Smith executed the will now under consideration; January 30, 1962--four months later--he changed it by codicil as hereafter noted. At trial, counsel stipulated that the will and codicil 'were physically prepared and for that purpose or for those purposes, Mr. Williams was acting as the attorney for Guy L. Smith.' It was further stipulated that Mrs. Marie Sharp Afflerbaugh, Mr. Williams's legal secretary, typed the will and codicil.

The will made specific bequests of $120,000, of which $108,000 was bequeathed to relatives related to Mr. Smith or to his deceased wife by either blood or marriage; $12,000 was bequeathed to eight friends, one of whom, Della Canning (Zieske), was to receive $3,000.

We believe the wording of many of the specific bequests in the will to be significant. They are set forth in the margin. ⁴ They are not couched in the jargon of the legal profession but indicate they were dictated by the testator. Further, Mr. Williams testified that on the date of the will he was not acquainted with nine of the named beneficiaries. The language of the bequests discloses that Mr. Smith was a Thoughtful, appreciative, and Generous person.

On numerous occasions, Mr. Smith had expressed great affection for Della Canning (Zieske). It is apparent that after making his will he wished to bequeath to her more than $3,000. This he accomplished by the codicil. Specific bequests to five beneficiaries (all relatives) were reduced from $18,000 to $10,000, and $40,000 additional was bequeathed to Della Canning (Zieske).

Not a single lay witness or any of the several doctors testified that Mr. Smith was not legally capable of making a will. He was described as having a very brilliant mind; interested in everything; mentally alert; intelligent; of his own mind and convictions; a very determined person; not easily influenced; competent in the administration of his investments. Even though his eyesight was greatly impaired, he handled his own brokerage account, buying and selling listed corporate securities.

The trial court found that:

At the time of the execution of said will and codicil, Guy L. Smith was active in the daily affairs of life. He had had for many years atherosclerosis and on one occasion had a severe attack of hiccups, for which he was hospitalized from September 3 to September 8, 1961. His eyesight for several years had been failing and at the time of the execution of said will and codicil, Guy L. Smith was unable to read, was practically blind in one eye and partially blind in the other eye, in that he could distinguish light and hand motions and the difference between a $5.00 and $10.00 bill. Guy L. Smith required assistance from some person present to find the places where to affix his name and initials to the will and codicil. Lewie Williams was present in the office of Dr. Jones when the will of September 22, 1961 was signed. (Finding of Fact VII).

At the time of executing said will and codicil in September, 1961, and January, 1962, respectively, and at all times between the execution of said documents, the testator, for a man of his age, education and training, Was capable of understanding the objects of his bounty, was capable of understanding the general nature and extent of his estate, and was capable of understanding that the documents he was signing were his will and codicil. The will and codicil aforesaid were executed by the testator in the presence of witnesses. (Finding of Fact VIII). (Italics ours.)

It is beyond dispute that Guy L. Smith had testamentary capacity. Further, fraud is not a factor in the instant case. Although alleged in the pleadings, the evidence does not disclose fraud, nor did the trial court find fraud. Had there been fraud, certainly the trial court would not have continued Lewie Williams as executor of decedent's nonintervention will.

We start with the rule announced in In re Martinson's Estate, 29 Wash.2d...