Weatherall v. Weatherall

• Court: Washington Supreme Court
• Writing for the Court: [63 Wash. 527] MORRIS, J.
• Citation: Weatherall v. Weatherall, 63 Wash. 526, 115 P. 1078 (Wash. 1911)
• Decision Date: 09 June 1911
• Parties: WEATHERALL v. WEATHERALL et al.

115 P. 1078

63 Wash. 526

WEATHERALL v. WEATHERALL et al.

Supreme Court of Washington

June 9, 1911

Department 2. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Consolidated actions by Sallie Weatherall against Robert Weatherall and others to establish a marriage and for a decree establishing a resulting trust and to contest the will of Harry Weatherall, deceased. From a judgment for defendants in each case, plaintiff appeals. Affirmed.

J. W Robinson, R. H. Fry, and McCafferty, Robinson & Godfrey, for appellant.

Troy &amp Sturdevant and A. J. Falknor, for respondents.

MORRIS, J.

This appeal involves two proceedings, consolidated in the court below and here for the purpose of hearing. In one appellant sought in an equitable suit to establish a marriage between herself and Harry Weatherall, the testator of respondents and to have her community interest in the estate fixed and determined; or, failing to establish the marriage, she prayed for a decree establishing a resulting trust in certain of the real estate. In the other, she sought in the probate proceedings to establish the marriage, and contested the will upon the ground of incapacity upon the part of the testator. These two proceedings are now before us for the second time. Upon the first appeal we reviewed the ruling of the lower court in striking certain evidence by which it was sought to establish the marriage, and in granting respondents' motion to dismiss, and we held ( Weatherall v Weatherall, 56 Wash. 344, 105 P. 822) these rulings of the lower court to be error, and remanded the cases, directing the lower court to receive the stricken and offered testimony, and to further proceed with the trials. This has been done, and we are now asked to review the final judgment of the lower court which is adverse to appellant upon all her contentions.

The first appeal presented questions of law only, and, having there fully determined the legal phases of the cases, nothing more need be said, further than that we still adhere to the views therein expressed, and proceed to the review of this appeal, which presents questions of fact only, with the law before us as therein determined. This review has been a laborious task, on account of the size of the record. Forty-four witnesses were examined and 24 exhibits introduced in evidence. Many errors are assigned upon the admission of evidence, some of which we regard as well taken, and have read the record accordingly. Others we overrule, but on account of the number of them, and the fact that they affect only the testimony submitted and involve no assertion or rejection of any particular rule of evidence, and thus are of no interest except in the particular instance we make no further reference to them. Neither do we think an extended review of the evidence would serve any good purpose. The only witnesses to the marriage were two Indians, James Tobin and his wife. The wife is a niece of appellant, and, so far as this record goes, her heir, and thus interested in the outcome of the trial. This fact doubtless had its effect upon the court below in weighing their testimony and finally rejecting it. Other witnesses, who testify to declarations of deceased and by whom it is sought to show the general repute of a marriage and other relevant facts, are shown to have sought to establish an interest in some of the property after the death of Harry Weatherall, and were compelled by the executors to restore such property to the estate. Other witnesses testify that the only talk concerning a marriage between appellant and deceased could be traced to two white men who had married Indian women, and for that reason sought to place deceased in a like relation with appellant. These facts, if credited, together with the appearance of the various witnesses upon the stand, their manner of giving their testimony, their apparent candor or lack of it, noticeable to the lower court in seeing and hearing them testify, though not to us in reading the record, would be strong factors in determining the weight of their testimony, and the effect to be given it. The testimony as a whole is so contradictory that it is difficult to reach a conclusion without having the benefit of a personal view and hearing of the witnesses. Illustrating this view, some witnesses testify that appellant and deceased...