34 Wash. 362 | Wash. | 1904
This is a proceeding in contest of tbe will of Abbie Howard Hunt Stuart, deceased, a resident of Thurston county, Washington, who died in San Eranciseo, California, on tbe 5th day of January, 1902. Tbe will was executed on tbe 18th day of September, 1901, and Mrs. Stuart died on tbe 5th day of tbe following
Within the statutory period John G. Hunt, a brother, and the nieces and nephews of the deceased, whose parents are dead, filed their verified petition in contest, alleging the relationship of the contestants to the decedent, and showing petitioners to be the only heirs at law of Mrs. Stuart. They also set forth in their petition their objections and exceptions to the ex parte probate of the alleged will — because the same was not the will of Abbie H. H. Stuart; because the same was not signed by her, or witnessed, or attested, as by law required, or at all; because decedent was of unsound mind and incapacitated from lawfully devising her property; and alleged that, at the date of the execution of the paper Avriting purporting to be a mil, and long prior thereto, Eva W. Gove and other principal legatees, exercised a strange, abnormal, and unlawful influence over the decedent, and, as a result thereof, they unduly and fraudulently influenced her to make the Avill in question and to disinherit the petitioners. Issues 'were substantially made up by denial of the material contesting allegations.
After the decree had been made, contestants applied to the court for allowance of costs and attorney’s fees which was denied, and this ruling is also here for review. The court found, in addition to the date of the death, execution of the will, etc., as set forth above, that said will was duly presented for probate by said executors; that- its due ’ execution, publication, and attestation on the 18th day of September, 1901, together with the death of the testatrix as aforesaid, were proven to the satisfaction of said court on the 14th day of January, 1902, as was also the testamentary capacity of said testatrix at the time she made her said will; that the testimony was duly reduced to writing, and subscribed and sworn to by the attesting witnesses on the said 14th day of January, 1902; and that on said last mentioned day a finding of fact and certificate in accordance with said testimony was duly made and entered by the court and judge thereof, establishing said will, and admitting the
As a conclusion of law, it was found that the will and testament aforesaid was in all respects a valid instrument, and was the last will and testament of said Abbie H. H. Stuart, and that the disposition ntade therein of the real and personal estate of said testatrix wás legal, binding, and sufficient; that said disposition was conclusive as to the rights or claims of all persons whomsoever, including the contestants or plaintiffs in this action; that the contestees or defendants were entitled to a judgment in conformity to said findings and conclusions. Certain findings of fact and conclusions of law were proposed by the contestants, which Were denied by the court.
The first contention of appellants is that the court erred in overruling the motion of the attorneys for contestants that the proponents be. required to establish the will
This disposes also of the objection to the admission of certain affidavits. If testimony admitted is not competent, it will not be considered.' But, as we have repeatedly announced, in a case tried de novo in this court, the admission of incompetent testimony will not be grounds for the reversal of a judgment, although for manifest reasons the refusal of the trial court to admit competent testimony would ordinarily be good ground for reversal.
The other questions involved reach the merits of the case. A great deal is' said in the elaborate briefs of counsel for appellants upon the duty of courts to construe wills
“The substantial facts, without controversy, shown were, that the deceased was a man of violent and ungovernable passions; that he was inordinately dissipated; that his acts evinced a total want of moral nature and natural affection; that he had for a number of years preceding his death been tbe subject of several painful maladies, some of them incurable, and that physically his system was completely wrecked; that he required a body servant for a considerable time constantly in attendance; that his second marriage was eccentric, foolish and, from every reasonable standpoint, reprehensible. In fact, it may be conceded from the whole testimony that the deceased, as stated in the rather vigorous language of counsel for petitioner, was ‘a moral leper,’ and that the inference might reasonably be drawn from all these facts that his mental vigor was impaired. Indeed, the record does not disclose any particular mental capacity or traits in the deceased except the ability to make and take care of money during his life. But the capacity required for a will is very well summed up, and stated, as the deduction from a long line of recognized authorities, by Judge Bedfield in the following language; ‘The result of the best considered cases*370 upon, the subject seems to put a quantum of understanding requisite to the valid execution of a 'will upon the basis of knowing and comprehending the transaction, or, in popular phrase, that the testator should at the time of executing the will know and understand what he was about.’ ”
And the following quotations are excerpts from decisions cited with approval by this court:
“The right of a testator to dispose of his estate" depends neither on the justice of his prejudices nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.” Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681.
“It is a testator’s privilege to make such disposition of his property as he pleases, and, if the will is his— that is, if. it is the voluntary act of a competent testator— it must stand, if properly executed in form.” Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885.
“It may be harsh, and, under some circumstances, cruel to disinherit one child and to distribute the estate among the others, but if the testator be of sound mind and execute his will as prescribed by law, no court can interfere.” Potter v. Jones, 20 Ore. 239, 25 Pac. 769, 12 L. R. A. 161.
“But the right to dispose of one’s property by will is most solemnly assured by law, and is a most valuable incident to ownership, and does not depend upon its judicious use. The beneficiaries of a will are as much entitled to protection as any other property owners, and courts abdicate their functions when they permit the prejudices of a jury to set aside a will merely upon suspicion, or because it does not conform to their ideas of what was just and proper.” In re McDevitt, 95 Cal. 17, 30 Pac. 101.
*371 “He may disinherit either wholly or partially his children and leave his property to strangers to gratify his spite, or charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued.” Boughton v. Knight, 6 Moak, Eng. Rep. 349.
An analytical review of the testimony in the case would be unprofitable. It is sufficient to say that, from an examination of all the testimony, we think the findings of the court were fully justified, both as to the legal execution of the will and the lack of undue influence exercised upon the testator, as alleged by contestants; and that it plainly appears that, at the time of the execution of the will, the testator was of a sound and disposing mind.
It is not necessary to enter into a discussion of the question of the power of the court under the statute to award costs to the contestants, for we do not think that the record discloses a case which, under the circumstances, would justify the court in awarding such costs.
The judgment is in all things affirmed.
Fullerton, C. J., Hadley, Mount, and Anders, JJ., concur.