In Re Bronson's Estate , 185 Wash. 536 ( 1936 )

The majority hold that the trial court erred in admitting the codicil to probate because of the provisions of Rem. Rev. Stat., § 1380 [P.C. § 10049], quoted in the majority opinion, and because of Rem. Rev. Stat., §§ 303 and 464 [P.C. §§ 8336, 8130], giving the right to petition for vacation or modification of a judgment within one year after its entry. As so clearly stated in the majority opinion, the codicil was presented to the court with the will, and was presumably known to the court when the decree admitting the will to probate was entered. For my part, I incline to the view that the offering for probate of a later will does not constitute a contest of an older will theretofore probated, within the intent of the statute, but this question, in view of the majority opinion, need not here be discussed.

I am also of the opinion that § 1380, supra, which provides that the order probating or refusing to probate a will "shall be conclusive as against all the world except in the event of a contest of such will as hereinafter provided," does not bar the subsequent offer for probate of a will later in point of time than the one previously established. In connection with this phase of the case, it must always be remembered that, in addition to the parties who may, on the one hand, take under a will, or on the other hand, lose what they would have received under the law had the deceased died intestate, there is always one other party whose wishes, if expressed with due legal formality, must receive the highest consideration, to-wit, the testator. This doctrine is well stated in Rood on Wills (2d ed.), § 413, p. 352, as follows:

"It has been declared a fundamental maxim, the first and greatest rule, the sovereign guide, the polar star, in giving effect to a will, that the intention of the testator as expressed in the will is to be fully and punctually observed so far as it is consistent with the established rules of law."

Of course, effect can be given to a will only if it be admitted to probate. The right to dispose of one's property by will is recognized and protected by the law to the fullest extent. Courts go to the utmost possible length to carry into effect the testator's wishes, provided always that he has given them lawful expression. It is not only the testator's will which must be given effect, but it is his last will which must prevail. Where possible, the last will of a competent testator will be upheld, and courts will not, by technical rules of statutory or other legal construction, defeat the right of the testator to have effect given to the latest expression of his testamentary wishes.

One named in a will as a beneficiary has no vested right thereunder until by legal proceedings such rights have been definitely established and been rendered effective by appropriate due process of law. The mere making of a later will revokes any prior will, and by the lawful execution of a codicil, the testator makes the same a portion of the testament to which the same is supplementary. The testator's will is then the will proper together with the codicil, and the two stand together as one document. Lee v. Lee, 45 Ind. App. 645, 91 N.E. 507; In rePlumel's Estate, 151 Cal. 77, 90 P. 192, 121 Am. St. 100; Inre Dutton's Estate, 301 Pa. 94, 151 A. 697; Patterson'sExecutor v. Dean, 241 Ky. 671, 44 S.W.2d 565; Des Portes v.Des Portes, 157 S.C. 407, 154 S.E. 426; De Campi v. Logan,95 W. Va. 84, 120 S.E. 915; Joiner v. Joiner, 117 Miss. 507,78 So. 369; Thompson's Construction of Wills, § 101, p. 605.

No person has any interest in the property of the estate of a decedent until that property is distributed after proceedings which, under the statute, constitute due process of law. In the administration of an estate of one dying intestate, a claim of heirship may be presented at any time prior to the entry of a decree of distribution, and in my opinion a later will or codicil may be offered for probate and, if proven, be admitted to probate at any time prior to the closing of the estate.

Statutes should not be construed so as to defeat the will of the testator, unless such construction be absolutely required. Neither should the will of a testator be defeated, as here, by the carelessness of the persons whose duty it was to present the codicil for probate. It is not their rights which are taken away, but the right of the testator to have his will carried out. One could be well content if the only result of such negligence as is disclosed by the record in the case at bar were to deprive the negligent person of some property right. But such is not the case. Under the doctrine of the majority opinion, the will of a testator, expressed with all due formality, may be defeated either by fortuitous events, mere carelessness or indifference of someone, whether interested or not in the result, or even by the malevolent design of one seeking indirect or even direct advantage.

I am convinced that a court of probate has inherent authority at any time while an estate is still open to admit to probate a later will than that theretofore probated. Without such authority, the probate court lacks that complete jurisdiction with which, in my opinion, it is invested by the necessities of the situation.

The majority opinion stresses the knowledge of the codicil possessed by the proponents at the time the will was admitted, and holds that the petitioner abandoned and waived the right to have the will modified by the admission of the codicil and induced the entry of a judgment which is final and conclusive as against all existing facts then known to the proponents and before the court. It seems to me that the knowledge or lack of knowledge on the part of the proponents is immaterial, nor do I believe that the petitioner had any right, which he could waive, to have the will modified. The probate court should be concerned primarily and sincerely with the wishes of the testator, to which he has given lawful expression. No one can waive his rights or by conduct afford a basis for an estoppel which will defeat the testator's will, however such an estoppel might operate as against other persons. In my opinion, neither statute relied upon by the majority applies to such a situation as is here presented.

A case of importance in connection with the questions here presented is that of Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122. The opinion, written by Judge Gray, discusses many authorities, and is of great interest. It appeared that one John Waters died in June, 1851, and that within a month thereafter his will was admitted to probate. During the year 1865, and after the death of the testator's widow, the executor presented for probate a codicil to the testator's will, which had been written on the back thereof and inadvertently omitted in the probate. The codicil, having been regularly executed and attested, was by the lower court admitted to probate. On appeal, this decree was affirmed by the supreme judicial court, it being noted that the English authorities recognized the production of a later will as a sufficient cause for revoking a decree in solemn form establishing a will. The court discussed the authority of the probate court to revoke its own decrees and referred to the situation which occurs when a will is discovered after the grant of letters of administration as of an intestate. The case of Clark v.Wright, 3 Pick. (Mass.) 67, is cited, in which a will alone had been admitted to probate in the court below, a codicil having been fraudulently torn off. Under the practice then in force, the appellate court established the codicil. The case of Stetson v.Bass, 9 Pick. (Mass.) 30, is also cited, in which the court said:

"We think there can be no doubt of the right and authority of a judge of probate to open an account settled, for the purpose of correcting a manifest mistake."

Many other cases are cited, in which the authority of probate courts to correct errors in their decrees had been upheld. The court says:

"A court of probate has no more power by a decree establishing one testamentary instrument to preclude the subsequent probate of a later one never before brought to its notice than by a decree approving one account to discharge an administrator from responsibility for assets not actually accounted for."

Finally, the court said:

"In the face of these authorities it is impossible to deny the power of a court of probate to approve a subsequent will or codicil, after admitting to probate an earlier will by a decree the time of appealing from which is past; or to correct errors arising out of fraud or mistake in its own decrees. This power does not make the decree of a court of probate less conclusive in any other court, or in any way impair the probate jurisdiction; but renders that jurisdiction more complete and effectual, and by enabling a court of probate to correct mistakes and supply defects in its own decrees, better entitles them to be deemed conclusive upon other courts. There is no reason to apprehend that such a power may be unjustly exercised. It is vested in the same court which is intrusted with the original jurisdiction over all probates and administrations. No decree admitting a later instrument to probate, or modifying or revoking a probate already granted, can be made without notice to all parties interested; every party aggrieved by the action of the probate court has the right of appeal to this court; and an application of this nature, when one will has already been proved, would never be granted except upon the clearest evidence. The new decree would not necessarily avoid payments made or acts done under the old decree while it remained unrevoked: Allen v.Dundas, 3 T.R. 125; Appeal of Peebles, 15 S. R. 39;Kittredge v. Folsom, 8 N.H. 98; Stone v. Peasley's Estate,28 Vt. 720; 1 Williams on Executors, 520, 522. . . .

"If the codicil had been on a separate paper, not known to the parties at the time of the probate of the will, but now recently discovered, there could be no doubt of the power and the duty of the probate court to admit it to probate. The fact that it is on the same paper does not change the reason of the thing, as it has never in fact been passed upon by the judge of probate."

The supreme court of the United States, in the case of Gainesv. Hennen, 65 U.S. 553, laid down the rule that

"Courts of probate may for cause recall or annul testamentary letters, but they can neither destroy nor revoke wills; though they may and often have declared that a posterior will of a testator shall be recognized in the place of a prior will which had been proved, when it was not known to the court that the testator had revoked it. Such is exactly this case. The Supreme Court decreed that the will of Daniel Clark, dated New Orleans, July 13, 1813, as set forth in the plaintiff's petition, should be recognized as his last will and testament, and the same was ordered to be recorded and executed as such, with thedeclaration, that admitting the will to probate does not conclude any one who may desire to contest the will with the applicant in a direct action. The decree of the court in that particular is the law of the case."

The supreme court of Tennessee, in the case of Murrell v.Rich, 131 Tenn. 378, 175 S.W. 420, referring to an application for probate of a later will, said:

"The latter proceeding does not in any respect question the correctness of the judgment rendered by the probate court in the former proceeding. The paper here involved does not speak as the will until established by the judgment upon the issue devisavitvel non; nor does that judgment assail, collaterally or otherwise, the correctness of the proceeding or the judgment for the probate of the Clarendon will. The judgment probating the will here involved on the issue devisavit vel non in the circuit court, if that judgment shall be affirmed, may, in connection with the revocatory clause of the will, render null the Clarendon will. But this result does not flow from any collateral attack made either upon the proceedings or judgment which established the Clarendon will. It flows from the law which gives vitality and force to the last testamentary act of the testator."

In the case of Bowen v. Johnson, 5 R.I. 112, 73 Am. Dec. 49, the court said:

"The cases of Campbell v. Logan, 2 Bradford's Surrogate (N.Y.) Rep. 90, and of Schultz v. Schultz, 10 Gratt. (Va.) Rep. 358 (60 Am. Dec. 335), cited by the appellant, are not only in point as to the exercise by courts of probate of the power of revoking the probate of a former will, as incidental to taking probate of a later one of the same testator, under legislation similar to our own, but, as we understand them, to do this upon a mere application to prove the later will. Without deciding, therefore, that such power of revocation may not be exercised upon a direct application to the court for that purpose, we have come to the conclusion that it may be exercised upon a mere application to take probate of, or to allow to be filed and recorded a copy of, the later will, as incidental thereto; and that upon the ground of misdirection in this particular, a new trial must be granted to the appellant in this cause."

In the state of California, it has been held that the offer of a later will is not a contest of an earlier will already admitted to probate. In re Moore's Estate, 180 Cal. 570, 182 P. 285. The California court refers to the different rules which have been adopted in different states and calls attention to the apparent approval by this court of the rule assumed in State exrel. Wood v. Superior Court, 76 Wash. 27, 135 P. 494.

The rule is stated in 1 Bancroft's Probate Practice, § 136, pp. 249, 250, as follows:

"While, as revealed by the two preceding sections, the rule as to collateral attack and equitable relief is strict, there is, however, one situation which may be regarded as an exception, and an anomalous one, to the general rule as to the conclusiveness of the decree admitting a will to probate. It is stated above that the decree adjudicates that the will is the last will and testament of the decedent. Nevertheless the general rule seems to be that courts of probate have inherent power to set aside their own orders admitting wills to probate upon the discovery of later and inconsistent wills."

This court has held that a decree of distribution cannot later be attacked, even though based upon an erroneous assumption of fact. Such decree entered after the giving of the notice required by law constitutes due process and is binding upon all the world. A decree admitting a will to probate, entered ex parte without notice, stands upon an entirely different footing, and, while it is a decree of the court, there inheres therein, both by statutory and common law, the possibility of attack, which may require that the decree be modified or set aside.

While in the jurisdictions whence came the authorities which I have cited no statutes exactly like ours may be in force, doubtless other laws establishing the finality of judgments were in effect which correspond to those of our state.

The questions presented in this case are manifestly of great importance. In my opinion, no technical rule of statutory construction should operate to defeat the testator's will and it should be held that the trial court had jurisdiction to admit the codicil to probate, even though over a year had elapsed after the entry of the decree establishing the will; the superior court having jurisdiction to in effect modify its prior decree upon a later testamentary expression of the will of the deceased being called to its attention.

I accordingly dissent from the conclusion reached by the majority.

BLAKE and GERAGHTY, JJ., concur with BEALS, J.