State v. Superior Court for Spokane County

• Decision Date: 26 April 1927
• Docket Number: 20570.
• Citation: 255 P. 960,143 Wash. 578
• Parties: STATE ex rel. SCHIRMER et al. v. SUPERIOR COURT FOR SPOKANE COUNTY et al.
• Court: Washington Supreme Court

255 P. 960

143 Wash. 578

STATE ex rel. SCHIRMER et al. v. SUPERIOR COURT FOR SPOKANE COUNTY et al.

No. 20570.

Supreme Court of Washington

April 26, 1927

Department 2.

Original proceedings by the State, on the relation of Katie Schirmer and C. E. Schirmer, against the Superior Court for the County of Spokane, Joseph B. Lindsley, Judge, after judgment in proceedings for the probate of a will. Reversed.

Corkery & Corkery, of Spokane, for plaintiffs.

FRENCH J.

The facts in this case are sufficiently stated in the following part of the memorandum opinion of the trial court:

'In this matter there is offered, first, the alleged will of the deceased, dated February 28, 1926, executed in the presence of George M. Nethercutt and C. E. Schirmer, as attesting witnesses, and an alleged codicil to said will, but separated and detached therefrom, dated October 1, 1926, and appearing to be signed by the deceased in the presence of George M. Nethercutt and C. E. Schirmer as attesting witnesses, being the same attesting witnesses subscribing as such to the said alleged will dated February 28, 1926.

'In the last alleged codicil no particular reference is made to the alleged will of February 28, 1926, or to any will, and the only connection, if any, with the will of February 28, 1926, must be implied from the reference in the said alleged codicil to the beneficiary named in said alleged will.

'In said alleged will of date February 28, 1926, the attesting witness C. E. Schirmer is made beneficiary to the extent of one-half of the residue of the estate of the deceased, and is also named as executor of the alleged will to act as such as under a nonintervention will and without bond.

'In contemplation of the possible illegality of the alleged will, of date February 28, 1926, hereinbefore referred to, proponents offer with proof of its execution by the deceased, a previous will executed at Kalispel, Mont., on August 13, 1924, and the question presented is whether either of said wills, or, if either, then which one will be admitted to probate in this court as the last will of the deceased.

'Giving consideration first to the alleged will of date February 28, 1926, and the alleged codicil offered therewith it appears that the attesting witness to each of said alleged will and codicil, i. e., C. E. Schirmer, is by his beneficial interest therein, being named both a principal beneficiary and also executor, disqualified entirely as a witness thereto, and that without his attestation and testimony as a witness the said alleged will lacks proper or sufficient attestation and proof to constitute it the will of the deceased.

'In case of the witness and beneficiary, C. E. Schirmer it appears that he is the grandson of the deceased; that his mother, a daughter of the deceased, is living; and that, if the deceased had died intestate, he, the said C. E. Schirmer would not be an heir at law of the deceased or entitled directly to any share in her estate.'

The question to be decided in this case is, Was C. E. Schirmer a competent witness to the will, being named both as a beneficiary and as executor? The rule is so well settled both at common law and by the decisions of the various state courts that it requires no citation of authority that competency is to be determined as of the date of the execution of the will.

At common law the beneficiary under a will was rendered incompetent as a witness by reason of such interest, and, if the will could not be proven by a sufficient number of other witnesses, so that the incompetent witness was necessary then the will failed. The practice grew in some of the common-law courts of permitting a witness to renounce his interest under the will, and thus restore competency. This was in line with the rule generally followed at that time, that a witness rendered incompetent because of an interest in the subject-matter could be rendered...