113 Wash. 277 | Wash. | 1920
This is a will contest. The testatrix, at the time of her death, left surviving her, as her heirs at law, her husband,' L. Roy, and three sons, the youngest of whom is the contestant. In the petition to set
The charges will be considered in the order stated, all of which present questions of fact upon which the trial court held against the petitioner. Upon the first charge, that of lack of testamentary capacity, the following may be taken as a summary of pertinent facts: Prior to 1913 the testatrix had been troubled for some years with insomnia. To relieve this, she began the use of intoxicating liquor, and in time became very much addicted to the use of that stimulant. To cure the habit she, on two or three occasions, was placed in a sanitarium. In March, 1913, she suffered a stroke of paralysis which affected her right side. In a few weeks she recovered from the severity of the stroke and thereafter was able to walk about, dragging the right foot a little. There was also a continuous impediment in her speech. In other respects she was normal; she was able to read the newspapers, plan the household affairs, walk about the neighborhood in which she and her husband lived, and go down town on shopping-trips.
From the time she had the stroke until the time of her death, there was employed for her constantly a lady attendant, who assisted her in managing the affairs of the home, looked after her wants, and accompanied her upon all occasions when she went out. There is some evidence that, in the month of January, 1916, she had an illness the exact nature of which the
Upon the trial, a number of friends and neighbors testified to facts which tended to show her mental capacity to make a will. One witness, a lady approximately fifty years of age, and apparently much above the average in intelligence, who had been her attendant and companion for a year prior to the execution of the will and for approximately two years thereafter, testified that Mrs. Roy could have named every piece of property which she and Mr. Roy owned, if asked to do so, without any suggestion whatever; that she could concentrate her mind sufficiently to do this, and that she could name the different relatives of the family, her sons, daughters-in-law, grandchildren and sisters without any suggestion, together with their relationship to her. This testimony, if true, would meet the requirements of the rule as to the mental capacity requisite to the execution of a valid will.
Upon the trial, the contestant offered the testimony of one Dr. H. S. Hill, who had been Mrs. Roy’s attending physician at the time of the execution of the will, and for some time prior thereto. This testimony was received by the court over objection in order that the record, if the case was appealed to this court, might
The testimony of Dr. Hill, when taken in connection with all the other evidence in the case, is not sufficient to show lack of testamentary capacity. Dr. Hill did not make regular professional calls upon Mrs. Eoy. From time to time he saw her but his calls were varied. He testified, when asked as to her mental capacity on the date the will was executed, that he could not ‘ ‘ say exactly on that date. I may not have been at the house on that day, my calls were varied, I might have run along for a week or two weeks without seeing her, but in my opinion, at the time she was not mentally sound.” Dr. Hill did not claim to be an expert on mental diseases. He was not in as good position as was the lady attendant above referred to to know whether Mrs. Eoy could call to mind her property, the natural objects of her bounty, and her relationship to them. These questions he had not at any time discussed with her.
Under the evidence we think that Mrs. Eoy, at the time she executed the will, had that quantum of understanding which is requisite to the valid execution of such an instrument. Points v. Nier, 91 Wash. 20, 157 Pac. 44, Ann. Cas. 1918A 1046. Wills are favored in the law, and it is a cardinal principle of construction that the testimony to overcome them must be cogent
Upon the question of undue influence, there is no substantial competent evidence in the record which would tend to impeach the will. The record only shows that Mr. Roy had told Mrs. Roy that they ought to make their wills, they were getting old, and then told her how he was going to make his. She thereupon told him that she would do the same thing. The wills were executed the same day but not at the same time. Mr. Roy was not present when the will here in controversy was executed. Mr. Roy’s will was substantially the same as that of Mrs. Roy, he giving the property to her for her lifetime, with provision that it should go to the three sons, share and share alike, except that the youngest son, the contestant, should be charged with an advancement of $22,500. To vitiate a will on the ground of undue influence, the evidence must show that the testator’s volition at the time of the testamentary act was controlled by another, and that the will was not the result of a free exercise of judgment and choice. Converse v. Mix, 63 Wash. 318, 115 Pac. 305; In re Patterson’s Estate, 68 Wash. 377, 123 Pac. 515. The evidence fails to show undue influence.
The third charge is that of fraud. If we have gathered the argument correctly, the appellant contends that Mr. Roy had told Mrs. Roy that they had advanced to the contestant out of the community estate
Something has been said about the will being an unnatural one, but this cannot be. It seems quite natural that the testatrix should give her property to her husband for his lifetime, and then direct that it be divided between their three sons, share and share alike, charging to one the advancement which she believed had been made to him. After reading the record with great care, and considering all the evidence, we are of the opinion that the evidence does not sustain any of the contestant’s charges.
The judgment will be affirmed.
Holcomb, C. J., Mount, Mitchell, and Tolman, JJ., concur.