63 Wash. 437 | Wash. | 1911
On August 31, 1908, Ellen Peirce, now deceased, made her will, and on the following day filed it in the office of the clerk of the superior court of Pierce county, it being the county of her residence, and received the clerk’s certificate therefor, conformably to the provisions of the code (Rem. & Bal. Code, § 1287). On the 26th day of September, 1910, upon the application of her attorney, it being shown that the certificate could not be found, an order was entered in the superior court of Pierce county, directing the clerk to deliver the will to such attorney, and it was so delivered. On the 29th day of October, 1910, the date of her death, Ellen Peirce executed an instrument which, omitting the certificate of acknowledgment, is as follows:
“I, Ellen Peirce, of Tacoma, Pierce County, state of Washington, do hereby revoke any and all wills heretofore made and executed by me, and do hereby declare any and all wills heretofore made and executed by me null and void and of no effect.
“In witness whereof I have hereunto set my hand and seal this 29th day of October, 1910.
“Executed in presence of Ellen Peirce.
“R. W. Jamieson.
“Ellen Johnson.”
This instrument was filed with the clerk of the superior court of Pierce county on October 31. On November 15, 1910, the will first mentioned was admitted to probate, and
In response to a citation issued upon the last mentioned petition, Mary Farley appeared and demurred thereto, on the ground, (1) that the petitioner has no capacity to sue; and (2) that the petition does not state facts sufficient to entitle the petitioner to any relief. The demurrer was overruled, and the demurrant was given five days to plead further. Failing to further plead, a default was entered against her on December 14. The order of default recites the making and filing of the paper writing which we have set forth, and that it was then a part of the records of the court, and directed the witnesses who attested it to appear on December 20 to prove its execution. In obedience to the order, the witnesses appeared as required, and gave evidence that the testatrix signed and published it as her last will and testament in their presence, and that they, at her request and in her presence and in the presence of each other, subscribed
The point first made is that the petitioner, Drake, has no such interest in the will as to warrant a contest on her part. We do not regard the proceeding as a contest. The statute, Rem. & Bal. Code, § 1297, provides that, when a will is exhibited to be proven, the court may immediately receive the proof and grant a certificate of probate. Section 1288 provides that, when a will is on file with the clerk, it shall, after the death of the maker, be opened in public, before witnesses, by the judge of the court, and may be retained for probate. It is apparent that the statute does not require the filing of a formal petition by a party in interest, although that method is usually followed. Both wills were proven before the same judge. The petition' called his attention to the fact that a later will had been filed with the clerk of his court, and it was competent for him to take the proof and determine whether it had been properly executed and, if so, its nature and effect.
The principal question presented is, whether the later instrument is a will within the meaning of the code (Rem. & Bal. Code, § 1322). This section provides that no will in writing shall be revoked except by a subsequent will in writing, or by burning, etc. The appellant contends that the in
The judgment is affirmed.
Dunbar, C. J., Mount, and Parker, JJ., concur.