Trimble v. Donahey

• Decision Date: 15 June 1917
• Docket Number: 13743.
• Court: Washington Supreme Court
• Parties: TRIMBLE v. DONAHEY et al.

165 P. 1051

96 Wash. 677

TRIMBLE v. DONAHEY et al.

No. 13743.

Supreme Court of Washington

June 15, 1917

Department 1. Appeal from Superior Court, Whitman County; R. L McCroskey, Judge.

Action by E. T. Trimble against H. A. Donahey and Harvey A. Donahey as executor of the estate of Rebecca A. Donahey, deceased. From a judgment sustaining a demurrer to the complaint and dismissing the action, plaintiff appeals. Affirmed.

E. T. Trimble, of Seattle, John Pattison, of Spokane, and F. L. Stotler, of Colfax, for appellant.

Hanna &amp Hanna, of Colfax, for respondents.

MAIN J.

The purpose of this action was either to enforce specific performance of a contract relating to real estate, or damages for the breach thereof. To the amended complaint, which will hereafter be referred to as the complaint, a demurrer was interposed and sustained. The plaintiff refused to plead further, and a judgment was entered, dismissing the action. From this judgment, the appeal is prosecuted.

The facts alleged in the complaint stated in a somewhat abbreviated from, are as follows: Rebecca A. Donahey died in Whitman county on the 2d day of June, 1908, leaving an estate consisting of real and personal property. The deceased left surviving her, as her only heirs, two sons, E. T. Trimble (appellant) and H. A. Donahey (respondent). On the 10th day of May, 1905, the deceased made and executed a nonintervention will, by the provisions of which the whole of the estate was devised and bequeathed to Donahey, except the sum of $1 to Trimble. The will, and the contents thereof, were well known to Donahey, who, at the time of its execution, and until the death of the testatrix, resided with her. On the 22d day of May, 1908, the deceased, who was then over 81 years of age, feeble, and confined to her bed by her last illness, directed one J. W. Cairns, who was then present at her bedside, to procure the will and destroy it. Cairns made known to Donahey, who knew of the place in which the will was kept, the request of the deceased regarding the will, and directed Donahey to produce the will for destruction. Donahey and Cairns there conspired together, and agreed to defeat the expressed wish of the testatrix, and Cairns thereupon, in the presence of the deceased and Donahey, burned and destroyed another paper, and informed the deceased that he had completely burned and destroyed the will. After the death of the testatrix, Donahey called the attention of Trimble to the existence of the will, and Trimble then informed Donahey that, by reason of the undue influence used over the deceased at the time of her making the will, and the fraud practiced by Cairns and Donahey in deceiving the deceased regarding the destruction thereof, he (Trimble) would contest the same if produced for probate. On the 8th day of June, 1908, Donahey voluntarily, and of his own motion and free will, and in consideration of avoiding a contest over the will and a family controversy, entered into an oral contract with Trimble, in which it was agreed by and between them that the will should not be presented for probate, but should be treated as destroyed, according to the expressed command and understanding of the testatrix. The oral agreement there made was to be executed at once, and the parties thereto joined the petition for the probate of the estate as though the testatrix had died intestate, and they agreed that Cairns should act as administrator. In making the agreement for the administration of the estate, it was understood that the whole of the estate should be thus administrated upon and distributed according to the law, each receiving half thereof. The petition for the appointment of Cairns as administrator contains an allegation as follows:

'That on the 10th day of May, A. D. 1905, said deceased made and executed her last will, and on the 30th day of May, 1908, said deceased revoked and destroyed said will, and said deceased died intestate.'

Attached to the petition, and forming a part thereof, was the following:

'Come now E. T. Trimble and H. A. Donahey, sole and only heirs of Rebecca A. Donahey, deceased, and each waives his right to administer upon said estate of Rebecca A. Donahey, deceased, and state that they have read the foregoing petition and join therein and request that the prayer of said petition be granted, and that said J. W. Cairns be appointed administrator of said estate.

E. T. Trimble.

'H. A. Donahey.'

On the 8th day of June, 1908, Cairns filed a petition for appointment as administrator, and thereafter was appointed and duly qualified as such. On the 1st day of September 1908, and after letters of administration had been issued to Cairns, Donahey, disregarding the agreement entered into, and in violation thereof, filed a petition for the probate of the will, and for the revocation of the letters of administration theretofore issued. On the 29th day of March, 1909, the superior court admitted the will to probate, and revoked the letters of administration. The estate consisted of personal property of a specified value, and certain described real estate of an alleged value. Ever since the death of the deceased, Donahey has been in possession and control of the real and personal property. Donahey...