30 Wash. 239 | Wash. | 1902
The opinion of the court was delivered by
On January 5, 1899, D. W. Organ died in Chehalis county, leaving an estate therein. Prior to his death, and on May 15, 1893, deceased made a will, hy which he left one-half of his property to one daughter and the other half to his remaining children, share and share alike. On petition of the executrix named therein, the will was admitted to probato by the superior court of Che<halis county on March 13, 1899. This action was begun by the appellants on February 15, 1901, to set aside the will upon the grounds that the deceased did not make it; that the same is void, because the testator at the time the will was made was not of sound mind, and that undue influence was exercised by the respondent upon the testator prior to the making of the will. On the trial the court found the facts against the contestants, and dismissed the action. From this judgment appeal is prosecuted.
Five errors are assigned, substantially as follows: (1) Error in imposing the burden of proof upon the contestants; (2) error in the admission of evidence of non-expert witnesses; (3) error in the findings of fact; (4) error in the conclusions of law; and (5) error in dismissing the cause. When the cause was called for trial, appellants (plaintiffs below) requested the court to impose the burden
“Wills shall be proved and letters testamentary or of administration shall be granted: (1) In the county of which deceased was a resident or had his place of abode at the time of his death; (2) In the county in which he may have died, leaving estate therein, and not being a resident of the state; (8) In the county in which any part of his estate may be, he having died out of the state, and not having been a resident thereof at the time of his death.”
The residence of deceased was not a jurisdictional fact under this statute. The superior court had jurisdiction to probate the will whether the deceased resided in Chehalis county or not, provided an estate was left in that county. It is not claimed that the deceased left no estate in Chehalis county.
It is next objected that the execution of the will was not proved at the time it was admitted to probate. The name of the testator was not signed by himself, but was signed, at his request, by another. The statute in reference to
Non-expert witnesses were permitted to state their opinion as to the mental condition of the testator during his life time. Each of these witnesses testified, in substance, that he was well acquainted with the deceased prior to his death; that he had known him personally for a considerable period of time, and associated with him and conversed with him on many occasions. Under these circumstances it was not error to receive the opinions of such witnesses as to the mental condition of the deceased prior to his death, and at or about the time the will was made. Schouler, Wills, § 201; Sears v. Seattle, etc., Ry. Co., 6 Wash. 231 (33 Pac. 389) ; 1 Greenleaf, Evidence (16th ed.), § 430p.
At the trial of this case no attempt was made to show that the testator did not in fact make the will, or that he was not present when the will was executed, and no evidence was offered by the plaintiffs to show that any undue influence of any kind was used by any person or exercised in any way on the deceased to cause him to make the will in question. Some slight evidence of his mental incapacity long before the will was made was introduced, but this evidence falls far short of proof that the testator, at the time he made the will, was not competent to make it. The evidence on the part of defendant, we think, clearly
The findings of fact made by the lower court are in accordance with the great weight of the evidence, and the judgment was therefore right, and is affirmed.
Beavis, C. J., and Dunbar, Eullerton and Anders, JJ., concur.