79 Wash. 590 | Wash. | 1914
This is a proceeding to contest the will of one John Enos, commonly known as “Portuguese Joe,” who died in the Azores islands on May 30, 1911. He left an estate in Spokane county of the value of about $200,000. The will
After the will was admitted to probate, the brothers and sisters of the testator instituted this proceeding. For cause of contest, they alleged, in substance, that, at the time of the execution of the will, Mr. Enos was 73 years of age, ill and in failing health, weak in mind and body, and mentally incapable of making a will; that his wife, Mary Enos, procured the will to be made by the exercise of undue influence, ill treatment, and by plying him with liquor; that the will was not the free and voluntary act of the testator, but was procured by fraud, duress and artifice, operating upon a body and mind weakened by age, failing health, and the use of alcohol.
Issues were joined, and the judge to whom such issues were submitted for decision, called a jury to pass upon the facts. In answer to interrogatories submitted by the trial judge, the jury found that Enos died of alcoholism; that, at the time of the execution of the will, Enos’ mind was weakened by age and the use of intoxicating liquors so as to be more susceptible to undue influence; and that the residuary devise to Mary Enos was procured by undue influence. The trial judge disregarded the findings of the jury and entered a judgment dismissing the contest, denying, at the same time, the contestants’ application for an allowance for costs and counsel fees. From that judgment, the contestants have appealed.
It appears from the record in the case that John Enos was born in the Azores islands of Portuguese parents. When a young man, he came to the United States and settled in Lincoln county, in this state, and engaged in the business of
The testimony of the contestants tends to show that, after the marriage, and while the deceased and his wife were living in Spokane, Joe became addicted to the frequent use of alcoholic drinks; that his wife encouraged him in this and made statements to her friends that she married Joe for his money. The evidence also tends to show that she importuned him upon all occasions to make a will in her favor. Finally, on February 8, 1911, the deceased executed his will, devising and bequeathing the greater portion of the estate to his wife. She also at the same time made a will in which she willed all
The contestants in their brief say:
“The contestants’ case, as we have heretofore pointed out, is not rested upon any supposed testamentary incapacity of Joe Enos. It is not claimed that he was mentally incapable of transacting business of importance. What is insisted upon is that during the last months of his life his judgment was so impaired, and his will-power so weakened by age and the excessive use of liquor, as to be incapable of resisting the constant pressure of the stronger will and mind of Mary Enos to make a will which should leave everything to her and disinherit his brothers and sisters. This pressure, we insist, is proven to have been brought to bear upon him and to have accomplished the purpose for which it was designed. If this is so, that part of the will which, after the payment of the inconsiderable bequests provided for, gave everything to her and left nothing to his brothers and sisters, was the product of undue influence.”
While there was evidence introduced on behalf of the contestants, as we have stated, which tended to show that the testator consumed considerable intoxicating liquor after his marriage, and upon two or three occasions was intoxicated, we are satisfied, from a ’careful reading of all the evidence, that it does not show that the mind of Enos at the time the will was made was incapable of making an intelligent will, or that his mind was so weakened by the use of alcoholic liquors that the constant pressure of Mary Enos upon him to make a will in her favor resulted in a will other than he would otherwise have made. If the evidence offered by the contestants upon this point was sufficient to show that his mind was not normal when the will was made, we think it was entirely overcome by evidence offered in support of the will, by substantial citizens, who had known him for many years in all his conditions of life, and who testified that his mind at the time and after making the will, was as clear as it ever
It is true there is substantial evidence on the part of the contestants which tended to show that his wife, continuously, after the marriage, requested him to make a will in her favor leaving her everything, and that he did not accede to these requests, but stated to her that he was going to provide for his brothers and sisters. On the other hand, the evidence on the part of the proponents of the will shows almost conclusively that he had considered the making of a will for about a year before it was finally made. It shows that Joe was unable to read or write in his native tongue; he was likewise unable to read or write the English language; and until a few months before his death he was unable even to write his own name. In his more important business transactions, he relied upon trusted friends. He left his money with his banker. He consulted his banker almost daily about his business transactions. His banker drew checks for him, and had absolute control of his funds. He likewise made a confidential adviser of his attorney and counselor, Mr. Hamblen, and from 1903 until the time of his death, was constantly advising, frequently daily, upon matters of business, with Mr. Hamblen.
It was Mr. Hamblen who, after Joe’s marriage in 1909, without solicitation from any person, suggested to Joe that, now he was married, he should make a will and dispose of his
Mr. Hamblen had theretofore stated to Joe that, inasmuch as he had made his fortune in this country, he ought to leave a substantial sum to some local institution, and suggested the Young Men’s Christian Association of Spokane. Joe made some inquiry as to this institution and agreed that he would leave $10,000 thereto. Mr. Hamblen then dictated a will as Joe directed, and when asked if he desired to leave anything to his brothers, said he did not. Mr. Hamblen then suggested that some nominal sum be left to them, and $5 was inserted in the will for each of the brothers. Afterwards when Joe and his wife came to sign the wills, they were read over to them. Joe concluded that he would change the amount to be given to the Y. M. C. A. of Spokane from $10,-000 to $5,000. The will was then redrafted and signed.
Mr. Hamblen testified that, at that time, and at the con
“The wife has been treated with a marked indulgence in testamentary cases which involve issues of this kind; out of consideration, as it would appear, to her sex and marital position, which incline her to persuasive, tender, and persistent, rather than overruling methods of influence, and to the impression which popularly obtains, moreover, that a true and faithful spouse is not likely to gain more under her husband’s will than she really deserves. Hence a wife’s pleading, and even her importunity with her husband, seldom avoids a will made under its influence, so long as it may be supposed that the husband weighed what she proposed and deliberated for himself, and that she practiced no deception upon him; and, generally speaking, a wife may justly influence the making of her husband’s will for her own benefit or that of others, so long as she does not act fraudulently or extort benefits from her husband when he is not in condition to exercise his faculties as a free agent.”
See, also, Underhill, Wills, § 147.
This court in In re Patterson’s Estate, 68 Wash. 377, 123 Pac. 515, said:
“To vitiate the will an influence must be shown which, at the time of the testamentary act, controlled the volition of the testator, deprived him of free will agency, and prevented an exercise of his judgment and choice. He may have been subjected to counsel, suggestion, persuasion or even importunity, yet if it be shown, as in this case, that he had testamentary capacity, and at the time of making the will was*597 free and unrestrained in exercising his volition it cannot be held that undue influence has been shown.”
And in In re Tresidder’s Estate, 70 Wash. 15, 125 Pac. 1034, it was said:
“Nor will a showing of mere persuasion on the part of a beneficiary overcome the will of a party, if from the whole record it is made to appear that it is his will. It is not influence alone, but undue influence, which has been defined to be such an influence as deprives the party of the free exercise of his intellectual powers, an influence which is exercised by coercion, imposition, or fraud, an influence which impels the testator to act in fear, a desire for peace, or some feeling which he is unable to restrain.”
It is apparent from the record in this case that no undue influence was exerted by Mrs. Enos upon her husband in the making of his will. He considered it for nearly a year. The record shows that he was slow to act in business transactions ; that, while he sought the advice of his confidential advisers and friends, he acted at last upon his own judgment, and usually uninfluenced by solicitations or recommendations. We are convinced that, even though it be true, which we doubt, that he was addicted to the excessive use of intoxicating liquors before and at the" time the will was made, and subsequently, the evidence clearly and persuasively shows that he was mentally capable of transacting any important business, such as the making of his last will, and that, at the time his will was made, he acted solely upon his own judgment, and placed his property where he desired it to go. In the case of Hunt v. Phillips, 34 Wash. 362, 75 Pac. 970, we said:
“A great deal is said in the elaborate briefs of counsel fox* appellants upon the duty of courts to construe wills with reference to the rights of heirs at law conferred by the law of descent and distribution. But the rights conferred by the law of descent and distribution are not more potent than the right conferred by the law to make a voluntary distribution of one’s estate. It is doubtless true that the law of descent and distribution disposes of the estate, in the absence of tes*598 tamentary disposition, in accordance with the dictates of common affection, but the right of independent disposition is just as absolute, and no presumption can be indulged in against the exercise, of this legal right.”
So here, while the law of descent and distribution without a will would have placed á larger portion of the property of the testator into the hands of his brothers and sisters than does the will, yet the testator had a right to make a will, and if he made it in his right mind in his own good judgment, and desired to leave but a pittance to his brothers and sisters, that was his privilege and his right. The record suggests a reason therefor which no doubt seemed sufficient to him. It was also the privilege of his wife to solicit him to make a will in which he should leave to her the larger portion or all of his estate. She was his lawful wife, and it was his duty to protect her by his will, and he evidently desired to do as he did in that respect. We are satisfied from the whole record that, at the time the will was made, the testator was fully competent to make it, and made it without any undue influence and that it was his will.
Counsel for the appellants insist that the court erred in not making an allowance for counsel fees and costs to the contestants. The statute, Rem. & Bal. Code, § 1313 (P. C. 409 § 127), with reference to proceedings of this kind, says:
“The fees and expenses shall be paid by the losing party. If the probate be revoked or the will annulled, the party who shall have resisted such revocation shall pay the cost and expenses of proceedings out of the property of the deceased.”
There is no provision of the code which provides that the costs and expenses of an unsuccessful contest shall be paid out of the estate. And this court has held that costs should not be allowed in such cases. In re Rathjens’ Estate, 45 Wash. 55, 87 Pac. 1070; Himt v. Phillips, supra. Neither in law nor in good conscience do we think the unsuccessful contest of a will should result in costs and counsel fees against the estate. Such a ruling would, in effect, place a reward
The judgment of the trial court is affirmed.
Crow, C. J., Fullerton, Morris, and Parker, JJ., concur.