Belle

In re Estate of Belle Chapman SUPREME COURT OF WASHINGTON, DEPARTMENTTWO December 28, 1950 IN THE MATTER OF THE ESTATE OF BELLE CHAPMAN,DECEASED. OLIVER K. EMMONS ET AL., APPELLANTS, v. TONY FREY,INDIVIDUALLY AND AS EXECUTOR, ET AL., RESPONDENTS Appeal from ajudgment of the superior court for Snohomish county, Denney, J.,entered September 30, 1949, upon findings, in probate proceedings,upholding the validity of a will. Hamley, J. Robinson, Mallery,Grady, and Hill, JJ., concur. Author: Hamley [37 Wash2d Page 682]This is a will contest. From a decision upholding the will, thecontestants appeal, contending that the record establishes a lack ofmental competence, and undue influence. The controversy centers aroundwhich of two properly executed wills is the last will of Mrs. BelleChapman. She executed a will May 11, 1948, by which she left a trusteefive thousand dollars for her son, if living, a life estate in aduplex to an old and trusted friend, Tony Frey, the remainder beingequally divided between the American [37 Wash2d Page 683] CancerSociety and the Washington Children's Home Society. No question israised as to her competency at that time, or as to the validity ofthat will, except the contention that it was revoked and superseded bya will executed July 12, 1948 (five days before her death at the ageof seventy-six years). By the latter will, which is the contested one,she left five thousand dollars to her son and the rest of her estateto Tony Frey, Mary Peterson, and the latter's son, Carlyle Peterson,in equal shares. Although Mrs. Chapman's son, Oliver K. Emmons, isnamed as a contestant, he receives the same amount under either will.The active contestants are the two societies named in the will of May11, 1948, but omitted from the will of July 12, 1948. Some referenceto Mrs. Chapman's early history is essential to an understanding ofthe present circumstances. When quite young, she married ThaddeusEmmons, and a son, Oliver K. Emmons, was the issue of that marriage.When the boy was five years old, she left her husband, leaving thechild, whom she never saw again, with Mr. Emmons' parents. The trialcourt, in its very complete and very able memorandum decision, said:". . . It should be said at this point that the evidence does notwarrant the conclusion that Mrs. Chapman was a heartless woman. Shewas evidently quite young at the time she left Mr. Emmons and did notfeel that she could take care of the small boy. Mr. Emmons' parentswere good people and after leaving and securing a divorce, sheevidently put her whole previous life behind her and commenced anew atthe time she married Mr. Chapman. She kept the secret of the birth ofthis son locked in her heart until a few months before her death."(Other quotations from the memorandum decision will be indicated byquotation marks without further reference to the source of thequotation.) Mrs. Chapman thereafter married Mr. Chapman, with whomshe lived until his death in 1917. Mr. and Mrs. Chapman lived ineastern Washington for many years. During this time they becameacquainted with William C. Losey, a [37 Wash2d Page 684] member ofthe Spokane bar. This acquaintance went beyond a professionalrelationship, and Mr. Losey became a close personal friend of theChapmans. As will appear later, it was Mr. Losey who came to the aidof Mrs. Chapman in the last months of her life, and who prepared theMay 11th will, which the contestants contend has never been revoked.Because of their being named as beneficiaries in the contested will,consideration should also be given to the relationships between Mrs.Chapman and Tony Frey, Mrs. Mary Peterson, and Carlyle Peterson. Mr.Frey became a friend of the Chapmans when they lived in Grant county,and he worked for them on a cattle ranch there. After Mr. Chapman'sdeath, he became an invaluable aid to Mrs. Chapman and did much of thework around the apartment house which she owned and operated inEverett. After coming to western Washington, Mr. and Mrs. Chapmanbecame acquainted with a Mr. Peterson and his wife, Mrs. MaryPeterson, one of the beneficiaries under the will. The Petersons, infact, were apparently Mrs. Chapman's oldest friends in this part ofthe state. Mr. Peterson had operated a store for Mr. Chapman atMilltown, and Mrs. Chapman had visited the Petersons there. ThePetersons later moved to Stanwood and Mrs. Chapman took up herresidence in Everett. Mrs. Peterson and Mrs. Chapman visited back andforth for a period of thirty years, continuing up to the time of Mrs.Chapman's death. Mrs. Chapman became devoted to Mrs. Peterson's youngson Carlyle, and he called her "Grandma Chapman." As a small boy hevisited her frequently with his mother. As he grew to young manhoodhis visits became fewer, and stopped after he entered the army andlater married. Nevertheless, Mrs. Chapman continued her interest inhim. All of the beneficiaries in the contested will were, it wouldappear, proper recipients of Mrs. Chapman's bounty, and there isnothing surprising about their inclusion in her will. We turn now toa consideration of Mrs. Chapman's physical [37 Wash2d Page 685] andmental condition prior to and at the time of the execution of thecontested will. She had successfully managed the apartment houseafter her husband's death, and was thoroughly alert and competentuntil she suffered a cerebral hemorrhage in June, 1947. ". . . Fortwo years previous to that she had been suffering from high bloodpressure and hardening of the arteries and had sought medical advicefrom Dr. Geo. K. Moore. After the cerebral hemorrhage of June, 1947,her power of speech was seriously affected. This gradually cleared upand her friends could notice little impediment in her ability to speakup until the time of her last heart attack on July 2, 1948. . . . "OnDecember 30, 1947, Mrs. Chapman executed a will, which will wasprepared by Arthur M. Newton, a lawyer of Everett, Washington. By thiswill she gave Mr. Frey a life estate in a duplex and left him outrightthe furniture and furnishings in that property and any other furniturehe desired from the apartment house. She made a specific bequest ofcertain real estate to the Washington Children's Home Society ofSeattle, Washington; left some real estate to Carlyle Peterson, son ofMary Peterson, and made Mary Peterson residuary legatee. Mr. Frey wasappointed executor." None of her friends knew that she had a son, andshe did not disclose that fact to Mr. Newton when the December 30,1947, will was prepared. At that time she made several trips to hisoffice and showed a complete understanding of her affairs. It issignificant that in that will she made provision for Mr. Frey and Mrs.Peterson and her son Carlyle, who are also beneficiaries under thecontested will. That will also contained a devise of certain realproperty to the Washington Children's Home Society. The record showscash contributions made by her almost every year from 1927 to 1946, tothat society, probably prompted by the fact that she could make nogifts to her own son. In May, 1948, about two months before herdeath, Mr. Losey received an almost unintelligible note from Mrs. [37Wash2d Page 686] Chapman. Greatly concerned about her well-being, hecame to Everett from Spokane to see what he could do for her. He ". .. noticed some deterioration in her condition from his previouscontacts with her, but after the lapse of a few days he found her tobe alert and entirely competent. . . . At that time he went over Mrs.Chapman's papers and advised her regarding her property. On thisvisit, Mrs. Chapman first disclosed to Mr. Losey that she had a sonborn to her, whose whereabouts she did not know." He advised Mrs.Chapman of the necessity of making a new will, and, as they had no wayof knowing whether the son was still alive, ". . . she left $5,000.00 in trust with the executor for a period of ten years to be paidto the son, if he could be found. She gave Mr. Frey a life estate inthe same property mentioned in the will of December 30, 1947, as wellas the personal property mentioned in that will. She left nothing toMrs. Peterson or her son, Carlyle. The bulk of the estate was left bya residuary clause to the American Cancer Society and the WashingtonChildren's Home Society, share and share alike. The Everett Trust andSaving Bank was appointed executor." In less than two months afterthe execution of this will, to wit, July 2, 1948, she suffered asevere heart attack. She was immediately hospitalized and died fifteendays later. Five days before she died she executed the will aroundwhich the controversy is waged. Subsequent to the May 11th will andprior to her heart attack, Oliver K. Emmons had been located in NewYork; and, although she had not seen him, she was convinced that hewas her son. We come now to the evidence bearing on the crucialquestion of her competency at the time the contested will wasexecuted. Dr. George K. Moore, who had been Mrs. Chapman's physiciansince his return from military service in 1945 (and to some extentbefore he went into the service), diagnosed her condition as seniledementia due to arteriosclerosis. On all his visits to the hospital hefound her irrational [37 Wash2d Page 687] and unable to recognizehim a great deal of the time. She was incontinent both as to bowelsand bladder. He believed that any lucid intervals were mere flashesand did not reflect the possession of any reasoning power on her part.He testified that she never could have rallied in her last days in thehospital sufficient to have executed a will, although he was notpresent when the will was executed. Dr. J. W. Ebert, testifying inresponse to a hypothetical question which stated the facts relative toher physical condition, did not find much evidence of senile dementia.He felt that her comatose condition and irrational behavior in thehospital could be accounted for by her severe illness, hightemperature, heart condition and general weakness. It was his opinionthat it was possible that she had had lucid intervals while in thehospital. We are impressed, as were Dr. Ebert and the trial court,with the lack of evidence of progressive mental deterioration, withwhich senile dementia cases are usually replete. Witnesses who talkedwith Mrs. Chapman during the week before and up to the day before herheart attack and final hospitalization, testified that she wasentirely normal. It appears that even Dr. Moore thought at one timethat Mrs. Chapman might become able to make a will while she was inthe hospital, as he testified that he told Mr. Frey that she probablywould not live and that a will should be made if her condition shouldbecome such that it would be possible. It was the doctor'sunderstanding that he was to call Mr. Newton, or Mr. Newton was tocall him in such a contingency. Mr. Frey asked the nurse who was mostconstantly in attendance, Mrs. Jo Ann Watters, to notify him whenevershe believed that Mrs. Chapman was in condition to make a will. Mrs.Watters testified that she called Mr. Frey (apparently about five p.m.) on July 12, 1948, and that he said he would arrive with Mr. Newtonto draw the will. Mrs. Peterson, who had called at the hospital to seeMrs. Chapman, and Mr. Frey were present when Mr. Newton arrived. Thelatter asked Mrs. Watters if it would be all right if he [37 Wash2dPage 688] went in and talked to Mrs. Chapman about a will, and Mrs.Watters said yes. When he went into the room, accompanied by Mrs.Peterson and Mr. Frey, Mrs. Chapman greeted Mr. Newton by name. Thetrial court adopted Mr. Newton's version of what transpiredthereafter. He testified that, after Mrs. Chapman gave him a firmhandshake, he said: "Well, you are ill and in bed and to get right tothe point I understand that you want to make a new will." Although shetold him that she did want to make a will, there seemed to beconsiderable hesitancy on her part in telling him just what she wanteddone with her property. We quote a portion of Mr. Newton'sexamination: "Q. Then what was said next? A. I think the nextstatement was made, I said, 'Mrs. Chapman, I understand that there issome man writing to you who claims to be your son.' Q. And did shemake any response? A. She said, 'I am sure it is my son.' Q. Did sheindicate anything about what she wanted to do for him? A. I asked herwhat she wanted to leave to the son and she said, 'I want to leave himfive or six thousand dollars, ' and I said, 'It has to be definite.Which will it be, five or six thousand?' and she says, 'It's fivethousand cash I want left to him.'" It is important to note that,when Mr. Newton first entered the room, he was under the impressionthat she probably wanted to restore the will that he had previouslydrawn, and he proceeded to call to her mind as much of that will as hecould remember. Thus, he suggested to her that the WashingtonChildren's Home Society had been one of the beneficiaries in theearlier will, but she said, "Things are changed. I don't want to leavethem anything" (probably referring to the fact that she was nowsatisfied that her own son was alive). Remembering that she had leftTony Frey a life estate in her duplex and Mary Peterson and her sonCarlyle something in her previous will, Mr. Newton asked her aboutthem and if she knew who they were. At this point she nodded to Mr.Frey and Mary Peterson and smiled. We quote Mr. Newton's testimonyafter that point: [37 Wash2d Page 689] "I asked her then if therewas anybody else she wanted to leave anything to and she said 'No',and then I said, 'Well, you have given me your son for five thousanddollars and you have given me the three names but you haven't told mehow you want it left' and she said, 'I want it left to the three', andI said, 'How do you mean?' She said, 'I want to leave it to the three,just the three' and I can't tell you whether I put in the 'equally' orwhether she did, but she agreed that she wanted to leave it equally tothe three. That was different entirely than the first will that I haddrawn, as I recall, but that was what she expressed to me." Followingthis, an incident occurred which indicated that Mrs. Chapman not onlyknew what she wanted, but did not intend to be influenced away fromwhat she had decided. In the words of Mr. Newton: ". . . Before I satdown to write that will [he had been taking notes up to that time],Mrs. Peterson came from the back of the room and in some term like'Honey' said, 'Don't you think that we should -- that you should putOliver's name just in with the three of us so we would all shareequally?' and Mrs. Chapman flared up and says, 'I don't want himhaving any buildings. I want him to have cash' and Mrs. Petersonretired to the back of the room." After Mrs. Chapman rejected Mrs.Peterson's suggestion, no further attempt was made to change her mind. Mrs. Chapman had been taken out of an oxygen tent during herconversation with Mr. Newton, but was placed back in the tent whileMr. Newton was drafting the will in longhand. When the will wascompleted, the front of the tent was rolled up and he began to readthe will to her. She was alert when he started his reading, but as hegot toward the end of it she closed her eyes, and he informed her thatshe would have to listen and be sure the will was as she wanted it.Again we quote his testimony: ". . . Mr. Frey reached in and kind ofbrushed her under the chin with the backs of his fingers -- the backsor fronts, and she smiled and she opened her eyes and then I startedat the paragraph where the bequest was left to the son and I readevery word of that will to her from that point on the second time, andthen I had asked -- prior to that I had asked the nurse, Miss Watters,if she would act as a [37 Wash2d Page 690] witness and she said shewould, and then I asked Mrs. Chapman if she would like to have me andthe nurse be the witnesses to the will and she said she did."Following the reading of the will, Mrs. Chapman's glasses were securedfor her and she shakily wrote part of her signature with Mr. Newton'spen, which went dry before she could finish. Another pen was thensupplied and the nurse guided her hand as she signed her name. Thereis some conflict in the testimony as to whether she saw the witnessessign the will. The trial court accepted Mr. Newton's testimony thatshe did watch them sign. The other witness to the will was the nurse,Mrs. Watters, who had notified Mr. Frey that Mrs. Chapman might beable to make a will and who had told Mr. Newton that it was all rightfor him to go in and talk to her about a will. When the will wasoffered for and admitted to probate, Mrs. Watters was examined in somedetail concerning the circumstances of the execution of the will, andshe then testified that Mrs. Chapman was rational. At the time of thewill contest, she testified that, by the word "rational, " she meantonly that Mrs. Chapman was aware of her surroundings. She furthertestified in the will contest that, in her opinion, Mrs. Chapman didnot then have the mental capacity to understand ordinary businessmatters. This somewhat unconvincing explanation of her previoustestimony that Mrs. Chapman was rational when the will was executedwas not, in the opinion of the trial court or this court, an adequatecounterweight to the testimony of Mr. Newton. In In re Jaaska'sEstate, 27 Wash. 2d 433, 443-4, 178 P.2d 321, we accepted asconvincing the testimony of a subscribing witness who repudiated herprior testimony in support of a will, but under conditions quitedissimilar from those in the present case. There is no othertestimony concerning Mrs. Chapman's competency to make a will at thetime the will was actually executed. However, there is testimony thatthere were periods during her stay in the hospital when she wasentirely rational. One nurse testified that Mrs. Chapman had rational[37 Wash2d Page 691] and lucid periods in which she made inquiry asto the condition of things at home, and about papers in her purse. Asthe trial court stated, "Mrs. Rosquist [the nurse] left the impressionthat she believed Mrs. Chapman was competent at times." Other nursesalso testified to the effect that they believed Mrs. Chapman wasincompetent to make a will at all times that they observed her in thehospital. However, they also recalled incidents which indicate thatthere were periods when she was rational and had possession of herreasoning powers. [1] This, we think, is peculiarly a case in whichthe trial court's findings should not be disturbed. The statementappearing in law point No. 5 in In re Martinson's Estate, 29 Wash. 2d912, 920, 190 P.2d 96, is particularly apropos as expressing our viewsin the present case. [2] There is nothing in the disposition of Mrs.Chapman's property which indicates any lack of mental competency orundue influence. All the beneficiaries, as we have seen, had beennamed in a prior will or wills. We could, by substituting Mrs. Chapmanfor Mrs. Chapin, and Frey for Sweitzer, reiterate what we said in thefinal paragraph of law point No. 1 and in law point No. 2 in In reChapin's Estate, 17 Wash. 2d 196, 208, 135 P.2d 445. If thecircumstances were such as to raise a presumption of fraud and undueinfluence under the conditions referred to in Dean v. Jordan, 194Wash. 661, 79 P.2d 331; Foster v. Brady, 198 Wash. 13, 86 P.2d 760;and In re Jaaska's Estate, supra (and we say if the circumstances weresuch), the proponents of the will have come forward with evidencesufficient to balance the scales and convince the trial court and thiscourt that there was no fraud or undue influence, and that Mrs.Chapman was competent to make a will when she made the one underattack. The contestants asked for a new trial because of newlydiscovered evidence concerning a will executed by Mrs. Chapman inApril, 1947, by which she left everything to the Washington Children'sHome Society, and because of the [37 Wash2d Page 692] admission ofcertain testimony of the beneficiaries under the contested will. Thecontestants say that portions of the testimony of the beneficiaries,admitted over objection, relate to transactions with the decedent;while the proponents of the will say that none of the testimonyinvolved such transactions. [3] We do not need to determine thatquestion. Had the evidence objected to been excluded, and had thenewly discovered evidence been admitted, the result, in our opinion,would not have been changed. Hence, it was not error to deny themotion for a new trial, and the error, if any, in admitting thechallenged testimony, was not prejudicial. We can make the foregoingstatement with more certainty than is usually possible, because thecrucial question was the competency of Mrs. Chapman to execute a willbetween five p. m. and six-thirty p. m. on July 12, 1948. The evidencewhich the contestants contend should not have been admitted haslittle, if any, bearing on that question, nor does the evidence thatthey urge as being newly discovered. The judgment is affirmed.Disposition Affirmed. 19501228 © 1998 VersusLaw Inc.