[No. 29504. En Banc. Supreme Court September 27, 1945.]
In the Matter of the Estate of DELL DENISON, Deceased. S. D. MILKEY et al., Respondents and Cross-appellants, v.
KATHARINE CROSS, Individually and as Executrix,
Appellant.«1»
[1] WILLS - TESTAMENTARY CAPACITY - EVIDENCE - HYPOTHETICAL QUESTIONS. In a will contest, where the testamentary capacity of the testatrix is attacked, testimony of a psychiatrist in response to hypothetical questions that in his opinion the testatrix was not mentally competent when she executed her will, is not particularly helpful.
[2] SAME - TESTAMENTARY CAPACITY - ECCENTRICITY. There is a difference between eccentricity, mental peculiarities, and temporary or partial hallucinations on one hand and testamentary capacity on the other.
[3] SAME - WILL CONTESTS - EVIDENCE. In will contests, each case must be decided upon its own facts in view of certain general principles of law.
[4] SAME. Wills, executed during illness in favor of beneficiaries who otherwise would not have shared in the estate, should be viewed with suspicion and all of the evidence subjected to the closest scrutiny.
«1» Reported in 162 P. (2d) 245.
[1] See 28 R. C. L. 98.
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[5] SAME - TESTAMENTARY CAPACITY - EVIDENCE - SUFFICIENCY. In a will contest, where the testamentary capacity of the testatrix was attacked on the ground that she was suffering from senile dementia, held that the record shows a mental operation on the part of the testatrix which is inconsistent with the existence of a case of senile dementia so advanced as to deprive her of testamentary capacity, and that the trial court erred in setting the will aside on that ground.
SIMPSON, MILLARD, and STEINERT, JJ., dissent.
Cross-appeals from a judgment of the superior court for King county, Allen, J., entered June 25, 1944, in probate proceedings, setting aside a will, after a hearing on the merits. Reversed on the appeal of the executrix.
Hyland, Elvidge & Alvord and Monroe Watt, for appellant.
Simmons & McCann, for respondents.
BEALS, C. J. -
Dell Denison, a Syrian, came to this country from Asia Minor, where she was born, about 1900. She married and lived in Seattle with her husband until his death, and thereafter as his widow until she died February 7, 1944, at the age of about seventy-six. All of Mrs. Denison's children died in infancy, and at the time of her death, her heirs at law were a sister, two brothers, and two nieces, the daughters of a deceased brother.
October 12, 1943, Dell Denison made her will devising all of her estate to a friend, Katharine Cross, whom she named sole executrix of her will without bond, the will providing that the executrix act without intervention of the court.
One of Mrs. Denison's brothers, S. D. Milkey, acting for himself and on behalf of her other heirs at law, seasonably contested the will upon the ground that, at the time the will was executed, Mrs. Denison lacked testamentary capacity.
After a hearing upon the issues raised by the contest, the trial court held that the testatrix lacked testamentary capacity and set aside the will. From this order the executrix named in the will has appealed.
Respondents have cross-appealed from that portion of the decree allowing appellant compensation on account of service rendered and for her attorneys.
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Our conclusion upon the merits renders consideration of the cross-appeal unnecessary.
The testimony is voluminous, the transcript of the evidence contained in the statement of facts consisting of eight hundred twenty-five pages.
The only question which was submitted to the trial court for determination was whether or not Dell Denison was mentally competent October 12, 1943, when she made and executed the will which the trial court set aside.
During Mr. Denison's lifetime, he and Mrs. Denison acquired several parcels of real estate consisting of a tract on Mercer island, a tract on Aurora avenue upon which was a dwelling which Mrs. Denison occupied as her home for many years, and a small building which she rented for store purposes. She also owned another lot on Aurora avenue upon which were two small houses which she rented. After her husband's death, Mrs. Denison's income consisted of rentals from her various properties. She also at times was assisted by a public welfare agency.
Mrs. Denison had little education. She could write her name after a fashion, but whether she could read either her native Syrian or English is uncertain. She was shrewd and was careful in collecting her rents, being particular always to receive every penny due her.
During the year 1930, her property on Aurora avenue was assessed in considerable amounts for local improvements. In connection with this matter she was represented by Matthew W. Hill, who collected some of her rentals for her and to whom Mrs. Denison would turn over some of the money which she herself collected.
Mr. Hill also attended to the payment of her taxes and assessments. As the years passed, Mrs. Denison suffered many bodily ailments. She suffered from diabetes, her blood pressure was high, and her heart was in bad condition. Her sight failed, cataracts having formed on her eyes, and, during the last months of her life, she was practically blind. As her physical condition deteriorated, she naturally became less and less able to attend to the care of herself and of her
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home, and she became suspicious and apparently feared that people would do her injury or would steal her possessions.
It clearly appears that Mrs. Denison was not on intimate or even friendly terms with any of her relatives. Some years prior to her death, she had a disagreement with one of her brothers, who lived in Seattle, and brought a suit against him, which she lost. To this brother, Mrs. Denison had a very definite aversion. It appears that she had also had a disagreement with her sister. Her brother who lived in Montana had testified on behalf of his brother in the lawsuit between the brother and Mrs. Denison, and Mrs. Denison's sister-in-law, the wife of the Montana brother, testified frankly that she saw Mrs. Denison seldom, that they did not get along at all, and that Mrs. Denison never liked her. Neither Mrs. Denison's sister nor her two nieces testified at the hearing; the only evidence in the record concerning the relations of the two sisters being to the effect that they were not friendly. It clearly appears that Mrs. Denison had been on bad terms with her relatives for a period of time long preceding her illness.
Mrs. Denison retained Mr. Hill as her attorney during the year 1930, and thereafter he represented her and with his wife was extremely kind and considerate in assisting Mrs. Denison. Evidently Mrs. Denison appreciated the kindness of Mr. and Mrs. Hill, as she frequently called upon them in time of trouble; she having learned from experience that her calls would not be in vain.
During the spring of 1943, Mrs. Denison's eyesight had become very seriously impaired, and she was in very bad physical condition. Conditions were such that it was apparent even to her that she should no longer live alone. From the record it is very evident that the situation had become acute. Mr. Hill advised Mrs. Denison to sell her home. Certainly, under all the circumstances, it was advisable that Mrs. Denison do this and make other arrangements for her living quarters. A fair offer for the property was made by Mr. and Mrs. Tibbet, and a contract of sale was executed Mr. Hill having represented Mrs. Denison. There was some sort of an oral understanding that Mrs. Denison could
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continue to live in the house and be to some extent cared for by the purchasers. Mrs. Tibbet was to receive an agreed amount each month to compensate her for taking care of Mrs. Denison. It seems probable that Mrs. Denison relied upon this arrangement to a greater extent than she should have done. Mr. Hill testified that it was the understanding that the arrangement referred to would be tried with reasonable expectation that it would be continued, but that at the same time it was recognized that the situation might be unsatisfactory to either party. Mr. Hill testified that he carefully explained the matter to Mrs. Denison, but when after a short time Mr. and Mrs. Tibbet refused to longer care for Mrs. Denison, the latter regretted having sold her property and without the least just cause blamed Mr. Hill for the situation in which she found herself.
Clearly, Mrs. Denison could no longer continue to live alone in her home with only casual assistance from friends and visiting nurses. It does not appear that, for the price she was willing to pay, anyone would have agreed to assume the burden of caring for her. If she was compelled to leave the home, it was undoubtedly better to sell the property on a good market than to undertake to rent it. Beyond question Mr. Hill's advice that the property be sold was sound.
It is evident that Mrs. Denison had the faculty of believing that to be true which she wished to be true. She was very much disappointed when it transpired that Mrs. Tibbet would (or could) no longer care for her in her old home. Her disappointment quite unreasonably resulted in a feeling of dissatisfaction with Mr. Hill because he had advised her to sell the property.
It must be remembered that her life, lonely as it had been for years, her age, her education or lack of it, and the fact that she was, and to an extent always remained, a foreigner caused her mental reactions to unpleasant situations to differ in some respects from those which would generally be considered normal. She had a fixed and definite aversion to hospitals, rest homes, and institutions of that character. Whatever the cause of this feeling, it was so strong as to amount almost to an obsession.
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She did have a number of women friends who were kind to her and whom she trusted. Some six or seven years prior to the trial she had conveyed her real estate to Mrs. Maibelle Young, who had for a year or so collected the rents and accounted to Mrs. Denison, to whom she testified she had loaned money. Mrs. Young made no claim that she ever in fact owned the property, and it appears that, at the expiration of about a year, she had reconveyed the land to Mrs. Denison. The two women remained on friendly terms.
During the year 1938, Mrs. Denison became acquainted with Mrs. Katharine Cross, the appellant, executrix, and they became good friends.
For many years Mrs. Denison lived in her home on Aurora avenue, renting rooms therein while her health permitted, and renting her other properties. Her sight having begun to fail, during the winter of 1943 she went to Harborview hospital for the purpose of having an operation performed on her eyes. The doctors being of the opinion that the operation should not then be performed, Mrs. Denison returned to her home, where she remained until the place was sold to C. W. Tibbet, May 16, 1943. A few days thereafter Mrs. Denison required hospitalization and went to Columbus hospital, where she remained for several weeks. In July she returned to her former home under care of Mrs. Tibbet, where within a few days she suffered an injury from a fall and was taken to Harborview hospital for treatment. After a short time she left the hospital and, Mr. and Mrs. Tibbet refusing to again assume the burden of caring for her, Mrs. Denison was taken to a rest home in Seattle, where she remained during the greater part of the month of August. Leaving the rest home, she passed a few days visiting with friends, but at her request Mrs. Cross agreed to take her in, whereupon she was taken to appellant's home, where she remained until October 12, 1943, when she was taken to Providence hospital, where she remained until her death.
It appeared that prior to October 12th, Mrs. Denison had consulted an oculist, whose opinion it was that the time had arrived when the cataracts upon her eyes might be successfully removed. She knew for at least a short time prior to
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October 12th that on or about that date she was to be taken to the hospital where she was to undergo the operations for cataracts.
Mrs. Denison was certainly a problem, whether considered as a landlady renting rooms, a paying guest or a patient in a hospital or a rest home. While in the hospitals, Mrs. Denison was a most difficult patient. She carried with her a black bag which after her death was found to contain over twelve hundred dollars in currency, and to friends she criticized the nurses, saying that they stole her things; and she would not co-operate with them in their endeavor to render her the care and service which her condition re quired. While in a hospital or the rest home, Mrs. Denison was constantly endeavoring to persuade some friend to take her away, saying that she was most anxious to live in a private home. The way in which she succeeded in leaving the rest home is somewhat typical of her general conduct. Mrs. Hill testified that she took Mrs. Denison to the office of a dentist; that when her treatment was finished, Mrs. Denison insisted upon being taken to the home of a friend. Mrs. Hill testified that Mrs. Denison had made up her mind upon this point. Mrs. Hill did take her to the home of Mrs. Denison's friend Mrs. Hughes, who unwillingly kept her for a night. The next day Mrs. Denison was taken to the home of a Mrs. Behneman, where she remained for a short time, when appellant, Katharine Cross, agreed to take Mrs. Denison into her home, which she did; where she remained until she was taken to the hospital as above stated.
In her endeavor to find some friend who would take her in, Mrs. Denison did not confine herself to the truth, but there appears from her statements and conduct a certain consistent plan which she followed with some degree of shrewdness.
Dr. H. J. Lenz, who for many years had been Mrs. Denison's physician, testified that in his opinion she lacked testamentary capacity at the date of the execution of her will. The witness did not see Mrs. Denison between August 10th and the last of October after she had undergone two operations for cataracts. The doctor testified that Mrs. Denison
706 IN RE DENISON'S ESTATE. [23 Wn. (2d)
suffered from diabetes, hardening of the arteries, uncompensated heart, and high blood pressure, and that she was a victim of senile dementia. He stated that in his opinion she had been mentally deranged for the last two years of her life.
Another doctor who specializes in nervous and mental diseases examined Mrs. Denison December 10, 1943, and testified that at that time she was suffering from senile dementia, "a slowly progressive disease which may be present for months or years depending entirely upon the stage that we find the patient in," and that, while it was entirely possible that Mrs. Denison might have been mentally competent on October 12th, he "would not expect her to be capable of making a will that would be legal on that date. The will might speak for itself." This witness based his conclusion to some extent upon a mistake of fact, Mrs. Denison having told him that she had a brother in Seattle (which in fact she did), while the doctor understood that she had no relative in Seattle. The doctor also considered that the fact that Mrs. Denison had made a nonintervention will directing that the executrix thereof serve without bond, was some evidence of lack of mental competency. The doctor stated that the operations for cataracts which Mrs. Denison had undergone after the execution of her will might accelerate mental and physical deterioration in the subject.
The testimony of this witness is not particularly helpful, as he did not see the testatrix until sometime after she had executed the will in question and had undergone two operations for cataracts. It is also clear that the witness based his opinion as to Mrs. Denison's mental capacity to some extent upon erroneous premises.
[1] Another doctor, a psychiatrist, called by respondents, testified in response to hypothetical questions that in his opinion Mrs. Denison was not mentally competent at the date she executed her will.
In such a case as this such testimony is not particularly helpful. In re Miller's Estate, 10 Wn. (2d) 258, 116 P. (2d) 526.
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Many witnesses testified as to Mrs. Denison's mental condition. Several nurses who had cared for her testified that she was mentally incompetent, but their testimony must be considered in the light of the fact that she had been a most unsatisfactory, difficult, and unco-operative patient, had shown that she mistrusted them and had said that she was not receiving sufficient food, that she thought she was being poisoned, and that some of her property had been stolen.
Dr. Lenz testified that in his opinion Mrs. Denison had been incompetent for approximately two years prior to her death. This estimate was certainly incorrect, as up to the late spring or early summer of 1943, she apparently attended to her business affairs and property (save when she was confined to her bed by illness or in the hospital).
[2] It must always be remembered that there is a decided difference between eccentricity, mental peculiarities, misapprehensions, temporary or partial hallucinations on the one hand, and testamentary capacity on the other. Many persons have been at times violently insane, while at other times they were mentally sufficiently normal to enjoy testamentary capacity.
Mrs. Genevieve Rhyne, a witness for respondents, testified that she had been a tenant of Mrs. Denison's, occupying the basement apartment in her home for about a year, portions of 1942 and 1943. She stated that Mrs. Denison, who was then practically blind, would walk around at night, that she needed care, and that the witness at times ran errands for her and took her food. She also stated that Mrs. Denison was quarrelsome and was under the impression that people were stealing her property and lying about her. She testified, as did other witnesses, that Mrs. Denison used very bad language and would frequently curse and swear violently. The witness concluded that Mrs. Denison was not a normal person and that she was irrational and incompetent to transact business. At the same time the witness testified that on the 16th of every month, Mrs. Denison was prompt in collecting her rent from the witness; that she had a receipt book and the witness would write out a receipt which
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Mrs. Denison would sign. The witness testified that she paid her rent in cash, after which:
"Q. She could always tell whether you had the correct amount or not? A. Yes. Q. Was she particular about it? A. Yes, right there on the dot and never forgot. Q. And did she always count the money too? A. Yes, she did. You couldn't cheat her a nickel."
The witness also testified that Mrs. Denison collected the rent from four other tenants, and that she always personally attended to collecting her money, save once when she was in the hospital.
Mrs. Rhyne's testimony is typical of a good deal of the evidence in the case. Mrs. Denison was old and sick and practically blind. She was a foreigner who had lived the first thirty years or so of her life in her native Syria, the evidence indicating that it was probable she had never learned to read or write her native language, and that she had then come to this country, where she had married, given birth to children who had died in infancy, and finally been left a widow. She was suspicious, possibly due to the fact that she was, and remained to a great extent, a foreigner. She had a violent temper, which was evidently quite unrestrained; she used bad language, but, at the same time even in old age and with failing sight, she knew exactly when her rent was due, how much was due, and attended to the collection of these rents from four or five tenants. She was also perfectly capable of counting the money paid her and assuring herself that she was receiving her due. She foolishly kept a large amount of cash in her immediate possession, but it is very clear that she never forgot exactly where it was; and it would seem that her expressed suspicions that people were stealing from her could not have been very sincere, as she continued to carry the money around with her. Possibly many of the eccentricities manifested by Mrs. Denison were part of an act which she would put on in order to get her own way. She was determined not to remain in a hospital or rest home, and that she would find some private home where she would be taken care of. She would tell Mrs. Hill that some friend would care for her and
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persuade Mrs. Hill to take her to that friend's house. Her schemes were sometimes successful, and friends were induced to take her in for a time. Finally she did persuade Mrs. Cross to care for her.
In regard to Mrs. Denison's relations with her family, it is clear that she did not like them. With all her anxiety to be cared for in a private home, she never requested any one of them to take her into his or her home or to come and live with her and care for her in her own home. She declined an invitation from her brother in Montana to live with him, and, while during the summer of 1943 she was making desperate efforts to find someone who would care for her, it does not appear that she ever once thought of communicating with her own brother who was living in Seattle, even in an attempt to obtain his aid in finding a home for her.
Mrs. Denison's two brothers testified on the trial, as did Mrs. Denison's sister-in-law, the wife of the brother who lived in Montana. The latter witness testified that in July, 1943, she came to Seattle in an endeavor to persuade Mrs. Denison to return to Montana with her and live at her brother's home. It appears that this was done at the suggestion of Mr. Hill. The witness, who was also a Syrian, testified that Mrs. Denison and the witness had "never got along at all," that Mrs. Denison had never liked her and that Mrs. Denison was irrational. Asked why she did not take Mrs. Denison home with her, she answered:
"A. She wouldn't go with me. She said I wanted to take her there to freeze her, and so she wouldn't go with me; but she promised she would stay in the Rest Home until I came back, and I offered to pay for her while she was in the Rest Home. I saw the head nurse and told her I would pay for her as long as she was in the Rest Home."
It is evident that, in spite of her great desire to leave the rest home where she was during her sister-in-law's visit, she did not wish to go to Montana to live with her brother.
We shall now discuss the circumstances under which the will here in question was prepared.
Mrs. Cross testified that on the morning of October 12, 1943, Mrs. Denison told her that she wished to make a will
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in her favor. There is no contention that the will was the result of undue influence: As above stated, the sole question presented is the testamentary capacity of the testatrix. Mrs. Cross, being at a loss as to how to proceed, telephoned a friend of hers who she knew was a notary public, who advised her that he did not feel qualified to draw a will. Mrs. Cross then called another acquaintance who was a real estate agent, who advised Mrs. Cross to telephone Ford Q. Elvidge, a member of the bar of this court. Mrs. Cross was not acquainted with Mr. Elvidge or any member of the firm of which he is a partner. Mrs. Cross then telephoned Mr. Elvidge's office and talked to Miss Mary H. Alvord, a member of the firm of Hyland, Elvidge and Alvord, who informed her that Mr. Elvidge was not available that day and that as October 12th was a holiday the office would close at noon. Miss Alvord then spoke to Monroe Watt, a practicing attorney of approximately ten years' standing, who was a junior member of the firm. Mr. Watt telephoned Mrs. Cross and made an appointment to call at her home during the course of the afternoon. He testified that he went to the address given and was admitted to the house by Mrs. Cross and by her introduced to Mrs. Denison, who was sitting in an easy chair and told him that she desired to make her will leaving her property to her friend Mrs. Cross. Mrs. Cross then left the room, and Mr. Watt testified that he discussed the matter with Mrs. Denison at considerable length. Mrs. Denison spoke with a strong foreign accent and Mr. Watt at first had some difficulty in understanding her. As the conversation proceeded, however, he became able to understand her. He stated that Mrs. Denison told him that she was practically blind and was about to undergo operations which might improve her vision.
From Mr. Watt's testimony, it appears that he followed a very thorough and lawyerlike method in determining whether or not Mrs. Denison was acting under duress or undue influence on the part of any person, and also to ascertain whether she enjoyed testamentary capacity. He testified that Mrs. Denison told him that she had two brothers,
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a sister, and several nieces. She said that she had been married, was a widow; and that she had had some children who had all died in infancy. She also explained that she had had trouble with her relatives, including a lawsuit with her brother who lived in Seattle; that she had preferred to live with friends rather than with her relatives, and she emphatically expressed her intention not to leave her relatives any portion of her property. She told Mr. Watt that she had made a will, but that she desired to change it. The record is silent as to when this will was made, or in whose favor.
Mrs. Denison described to Mr. Watt the property which she owned, going into some detail; and apparently was correct in all particulars both as to her relatives and her property.
When Mr. Watt became satisfied that Mrs. Denison was competent to make her will, he prepared it in due form, and Leta Cutrell and Myrtle A. Compton, neighbors, were called in to act as witnesses. In the presence of the witnesses, Mr. Watt read the will to Mrs. Denison, who because of her impaired vision was unable to read it herself, and, she having declared it to be her will and signed it, all formalities having been followed, the document was witnessed by the ladies mentioned and by Mr. Watt. Mrs. Denison then paid Mr. Watt his charge for drawing the will.
It is of course true that by this will Mrs. Denison left nothing to her brothers and sister, who were "natural objects of her bounty," although this description is generally applied to a spouse, children, or parents. In this connection, however, it is proved conclusively by the record that Mrs. Denison was angry with her relatives and at no time manifested any disposition or desire to see them, to be with them, to have anything to do with them, or to give or leave them any of her property.
Mr. Hill testified that between 1934 and 1937, Mrs. Denison at various times expressed to him the wish that he have her property. The record clearly shows that any friend who would give Mrs. Denison a home and treat her with kindness and consideration would for the time being at least have
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been the beneficiary or a considerable beneficiary in any will which she might execute. The fact that by her will she left nothing to her relatives is entirely consistent with her mental attitude of years' standing, dating back through a period long before there could be any question as to her mental capacity.
Unless Mr. Watt's testimony is to be disbelieved and disregarded, it appears that upon the afternoon of October 12th, Mrs. Denison knew that she was going to the hospital that evening to undergo serious operations upon her eyes; that she knew exactly what property she owned, the condition of her property, and some details concerning the same; that she correctly described her living relatives and clearly expressed her intention not to name any one of them as a beneficiary in her will.
The trial court in its comprehensive memorandum opinion indulged in no criticism of Mr. Watt's testimony and made only brief reference thereto.
Clearly it was the trial court's view that Mrs. Denison's many eccentricities, her continued complaints that people who were undoubtedly honest and honorable in every way were taking advantage of her, and even that some had stolen from her, coupled with the testimony of Dr. Lenz, who had been her physician for many years, and of Mr. Hill, who had been her attorney and had been most kind and helpful to her, and also the expert medical testimony, compelled the conclusion that Mrs. Denison was a victim of senile dementia in so advanced a stage that she lacked testamentary capacity.
Certainly Mrs. Denison was often most unreasonable, was eccentric to a degree, indulged in fits of temper, and often made statements which were untruthful. However, we think that from the evidence it must be accepted as a fact that she was mentally competent within a period not long prior to October, 1943, and that at all times up to that date she knew what she wanted to do and consistently followed plans which she believed would enable her to
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accomplish her desire, namely, to procure a home with some friend. This objective she did finally attain when Mrs. Cross took her into her home.
In 32 C. J. 609, Insane Persons, § 60 g, is found the following concerning senile dementia:
"Senile dementia, as the words indicate, is that diminution and weakness of the mental faculties which result from old age; that peculiar decay of the mental faculties which occurs in extreme old age, whereby the person afflicted is reduced to second childhood. It is a form of insanity in the aged; a mental disorder frequently attacking the faculties of old persons; mental imbecility from old age. Senile dementia differs both in process and progress of decay. It cannot be described by any positive characters. It begins gradually and is progressive in character; in its gradual advance to incompetency, it embraces a wide range of infirmity, varying from simple lapse of memory to complete inability to recognize persons or things.
In 68 C. J. 442, Wills, § 39, is found the following:
"Senile dementia, often a result from old age, does not necessarily result in mental incapacity to make a will, but there must be such a failure of mind as will deprive the testator of intelligent action. The disease is progressive in nature, and it must be determined whether its progress has so impaired the faculties of the testator that they fall below the mark of legal capacity. This must be determined not alone by the nature and tendency of the disease, but by its effect in the particular case."
In the case of Gates v. Cole, 137 Iowa 613, 115 N. W. 236, the supreme court of Iowa reversed a decision of the trial court on appeal from an order setting aside a will on the ground of mental incapacity on the part of the testatrix and undue influence. It was contended that the testatrix was the victim of senile dementia. Concerning this affliction the supreme court said:
"Before we discuss the evidence upon which the contestants rely, it will be well to note what senile dementia really is. That it differs greatly both in process and progress of decay is freely admitted by all writers on the subject. Medical observers say that it cannot be described by any positive characters; that in its gradual advance to incompetency, it
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embraces a wide range of infirmity, varying from simple lapse of memory to complete inability to recognize persons or things; `that often the mental infirmity of the aged is by no means as serious as might be supposed at first sight, and that, to use a figure of speech, the mind may be superficially rotted while it is sound at the core.' It is generally said that one of the surest symptoms of mental decay is the loss of memory; and especially in respect of names and dates; but it is fully recognized in the authorities that, while an old person may appear oblivious in such matters, his mental grasp of the relations he sustains to others and more especially to the immediate members of his family, and to others who would be the natural objects of his bounty, and of his own interest and affairs, his capacity and solid understanding may still remain firm. Failure of memory is not alone enough to create testamentary incapacity, unless it extends so far as to be inconsistent with the `sound and disposing mind and memory' requisite for all wills. `Great age alone does not constitute testamentary disqualification,' and `there is no presumption against a will because made by a man of advanced age, nor can incapacity be inferred from an enfeebled condition of mind or body.' Horn v. Pullman, 72 N. Y. 269. The law wisely sustains wills made by persons of impaired mental and bodily powers, provided it appears that the will is the uninfluenced act of the testator, and he has the requisite intelligence to comprehend the condition and extent of his property and remember the persons who would ordinarily be his beneficiaries. In Banks v. Good fellow L. R. 5 Q. B. 549, Chief Justice Cochburn held that, though mental power be reduced in old persons below the ordinary standard, yet, if the testamentary act is understood and appreciated in its different bearings, if the mental faculties retain enough strength to comprehend the transaction entered upon, the power to make a will remains. In other words, to constitute senile dementia, there must be such a failure of the mind as to deprive the testator of intelligent action. Such is the rule of our own cases, and the rule established by the great weight of authority. [Citing cases.]"
After discussing the evidence, the Iowa court observed that it was not shown that the testatrix had forgotten her relations or friends or had failed to recognize them, or that she was oblivious to her property rights and interests. The supreme court upheld the will, holding that the evidence did
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not support the conclusion of the trial court to the effect that the testatrix lacked testamentary capacity.
In the case of Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, the supreme court of Kansas reversed a decision of the trial court setting aside a will because of lack of testamentary capacity on the part of the testator. The court discusses at length the condition described as that of senile dementia, saying with reference to this disease:
"While the course of the disease is chronic and advances to a fatal end, it develops gradually and is quite variable in duration. It usually lasts several years, although a few acute cases have been observed. It is sometimes subject to remissions in which mental balance is regained. Defects of memory are the earliest symptoms, first, memories of recent things, and then older memories. Afterwards the power of intellectual comprehension and assimilation is lessened, the judgment begins to fail, ethical feelings degenerate, the will becomes weakened, coarser instincts acquire ascendency, hallucinations and illusions manifest themselves, and the mental reduction continues until the extreme degree of dementia is reached.
"When a will has been made after some or many of the symptoms of senile dementia have been observed the law does not says these symptoms prove the testator had senile dementia, senile dementia destroys the mind, consequently the will was made by one of unsound mind. The question of testamentary capacity remains in substance and effect just what it was in the Marquis of Winchester's Case, decided by the court of King's Bench at the Trinity term, held in the forty-third year of the reign of Queen Elizabeth.
"`And because ft appeared by divers witnesses, and by many notorious circumstances, that the said Marquess being sick et multa provectus senectute, was not of sane and perfect memory, such as the law requires at the time of the making of the said supposed will (for by law it is not sufficient that the testator be of memory when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason; and that is such a memory which the law calls sane and perfect memory).' (Marquess of Winchester's Case, 3 Coke's Reports, 302, 77 Eng. Reports, Full Reprint, 287.)"
716 IN RE DENISON'S ESTATE. [23 Wn. (2d)
Beyond question, no-one who had known Mrs. Denison for ten years prior to her death would have expected that by her will she would leave any of her property to her relatives. Regardless of whether or not any just reason for her antagonistic feeling toward them existed, she undoubtedly had such sentiments to a considerable degree. While from the viewpoint of her blood relatives the will which she made may in a sense be said to be "unnatural," it was undoubtedly the will which one who knew her would have expected that she would make unless she experienced a decided change in her mental attitude toward her relatives.
In the case of In re Schafer's Estate, 8 Wn. (2d) 517, 113 P. (2d) 41, this court upheld the will of an aged lady made when she was in the hospital suffering from a mortal disease, holding that a will in favor of one not a relative and which disinherited relatives whom she had named as beneficiaries in prior wills was valid.
In In re Bottger's Estate, 14 Wn. (2d) 676, 129 P. (2d) 518, this court discussed the question of testamentary capacity, and upheld the will of an aged lady which was contested upon the ground that the decedent was of unsound mind and acted under undue influence.
Concerning the matter of testamentary capacity, this court, after citing cases, said:
"Those cases hold that a person is possessed of testamentary capacity if at the time he assumes to execute a will he has sufficient mind and memory to understand the transaction in which he is then engaged, to comprehend generally the nature and extent of the property which constitutes his estate and of which he is contemplating disposition, and to recollect the objects of his bounty. This is the standard by which courts must measure the facts of each case in which it is contended that an instrument offered or accepted as the will of a decedent was executed at a time when the testator lacked capacity to make a valid testamentary disposition of his property."
[3, 4] In will contests courts have repeatedly observed that each case must be decided upon its own facts in view of certain general principles of law.
Sept. 1945] IN RE DENISON'S ESTATE. 717
We are mindful of the principle relied upon by the respondents repeated by this court in In re Chapin's Estate, 17 Wn. (2d) 196, 135 P. (2d) 445, as follows:
"Deathbed wills, executed in the presence of beneficiaries who otherwise would not have shared in the estate, should be viewed with the greatest suspicion and all of the evidence subjected to the closest scrutiny."
Respondents strongly rely upon In re Forsman's Estate, 177 Wash. 38, 30 P. (2d) 941; In re Johanson's Estate, 178 Wash. 628, 35 P. (2d) 52; and In re Lundgren's Estate, 189 Wash. 33, 63 P. (2d) 438.
We can merely repeat that each case must be decided upon its own facts and that the line of demarcation between testamentary capacity on the one hand and incapacity on the other is frequently difficult to trace.
Respondents in their brief several times refer to the fact that Mrs. Denison was blind. It is true that her vision was extremely limited, but while that fact made her dependent upon other persons for care, it has little bearing upon the presence or lack of testamentary capacity on her part.
Respondents call attention to the fact that certain persons who by their testimony might have thrown some light on Mrs. Denison's mental condition were not called as witnesses by appellant.
Under the circumstances disclosed by the record, it would seem that the fact that these persons were not called as witnesses is no more an implication against one party to this proceeding than the other. The witnesses might have been called by either party.
Mrs. Cross testified that no limitation had been placed on the time Mrs. Denison should remain at Mrs. Cross' home. One witness testified that, while Mrs. Denison was at the rest home, Mrs. Cross, referring to Mrs. Denison, had said to the witness that "she would not take that nut home with her." Mrs. Cross categorically denied that she made any such statement. In any event, she did take Mrs. Denison into her home, and apparently the arrangement was eminently satisfactory to Mrs. Denison.
718 IN RE DENISON'S ESTATE. [23 Wn. (2d)
Respondents also refer to the fact that immediately after the execution of the will Mrs. Denison was taken to the hospital. Evidently the fact that Mrs. Denison was going to the hospital on the evening of October 12th, caused her to execute her will on that day. The situation would be no different had the will been executed days or weeks previously.
[5] Contracts between old persons needing care and attention and some person who agrees to render the necessary service in consideration of receiving property belonging to the persons requiring care, are very common. Always in such contracts there is an element of uncertainty. Such a contract formally executed and delivered is valid, if the person owning the property dies shortly after its execution. On the other hand, that person may live long and have the better of the bargain. One in Mrs. Denison's situation occupies a more advantageous position by making a will in favor of the person rendering the care than if such person should make an absolute conveyance of the property, because a will (unless part of a contract) may be revoked at any time. It does not appear that there was any contract between Mrs. Denison and Mrs. Cross, but the motive behind the execution of the will seems reasonably clear. Mrs. Denison's great desire was to be cared for in a private home. Mrs. Cross had taken Mrs. Denison into her home, thereby assuming a very considerable burden which apparently no one else was willing to undertake. Apparently the last weeks of Mrs. Denison's life outside of the hospital were rendered as comfortable as might be by the attentions of Mrs. Cross. At least just before leaving for the hospital, Mrs. Denison executed the will in question. Doubtless she expected to recover from the operations which she was to undergo, and that she would again need a home. It seems highly probable that she believed that Mrs. Cross would again assume the burden of caring for her. What would have happened had Mrs. Denison recovered sufficiently to leave the hospital, we do not know, but if when she made her will she possessed testamentary capacity, her will is valid. Doubtless Mrs. Denison believed that the execution of a will in favor of Mrs. Cross
Sept. 1945] IN RE DENISON'S ESTATE. 719
would tend to induce the latter to continue the arrangement which was evidently satisfactory to Mrs. Denison.
The record shows a mental operation on the part of Mrs. Denison which is inconsistent with the existence of a case of senile dementia so advanced as to deprive her of testamentary capacity. In most cases in which the contention has been made that a testator was suffering from senile dementia and for that reason lacked testamentary capacity, it has also been contended that the will attacked was void because of undue influence. These two grounds for attack are often linked together. In the case at bar there is no contention that the will was induced by undue influence.
Careful study of the record convinces us that the trial court erred in finding that Mrs. Denison's will which was admitted to probate should be set aside because of lack of testamentary capacity on her part.
The order appealed from is accordingly reversed, with instructions to reinstate the will as a valid expression of Mrs. Denison's testamentary wishes.
BLAKE, ROBINSON, GRADY, JEFFERS, and MALLERY, JJ., concur.
SIMPSON, J. (dissenting) - I am unable to agree with the majority opinion.
Many disinterested witnesses testified to the mental condition of Mrs. Denison. Dr. D. A. Nicholson, specialist in nervous and mental diseases, examined Mrs. Denison in Providence hospital on December 10, 1943, and concluded that she was suffering from a mental condition known as senile dementia. He stated that she was "confused and very forgetful, especially on recent events, and was forgetful as to remote events." Speaking of senile dementia, he stated:
"It is a slowly progressive disease which may be present for months or years, depending entirely upon the stage that we find the patient in . . . A. I would not expect her to be capable of making a will that would be legal on that date. The will might speak for itself. Q. Will you explain what you mean by saying you would not expect her to execute a will that would be legal? A. Because at
720 IN RE DENISON'S ESTATE. [23 Wn. (2d)
the time that I examined her, she stated that she had one brother living in Seattle, that his name was `Mickey' or `Milkey.' The doctor was with me, and he told me she did not have a brother. Of course, I only have his statement for that. She said the building we were in was a roominghouse, the Providence hospital was a roominghouse. She said the month we were there was September. The month was December. Then when I asked her to name the months of the year and give them in order, she said the first month was January, the next was July, the next was June, and then February. I asked her what year this was, and she said that this was 1931, and I asked her when she was born, and she said in 1933."
It is true that the doctor was mistaken about some of the facts, however his conclusion was based upon other facts relative to dates and the patient's general condition.
Dr. H. G. Lenz, a general practitioner, had been Mrs. Denison's family doctor for twenty-five years. He testified that she suffered from senile dementia and had been mentally deranged for the past two years of her life and that she at one time stated: "I didn't know that I owned the lot where the Providence hospital is." Asked if he believed that Mrs. Denison was capable of making a will, he answered, "No, no, I do not."
Dr. Nathan K. Rickles, a specialist in nervous and mental diseases for a long period of time, testified as an expert in answer to hypothetical questions as follows:
"Q. Dr. Rickles, are you familiar with a malady or case commonly designated as senile dementia? A. Yes, I am. Q. Will you explain just what the common experience is in the development of that disease in a person of the female sex of the approximate age of seventy-six years? A. Senile dementia means, from the term itself, a disease of old age in which the mind is affected. It is usually a chronic progressive disease which starts out rather insidiously in which the patient has early defects in memory, which becomes progressively worse, particularly with recent events. They may be very sharp on the events of their childhood, but they show a tremendous inability to recall recent events. You can ask them who the president is, and they may say Wilson or Teddy Roosevelt. They show a very definite loss in judgment, inability to reason properly,
Sept. 1945] IN RE DENISON'S ESTATE. 721
largely due to the fact that their memory is poor. They develop signs of arterial sclerosis, which is hardening of the arteries, that resulting from deterioration due to the fact that the blood supply to the brain is not what it should be. The brain requires a great deal of oxygen, and when there is a lack of blood supply or a lack of proper exchange of blood due to the hardening of the arteries and the veins, the brain, as a result, shows damage, and the memory becomes increasingly more defective, their judgment becomes more impaired, and eventually they are completely out of touch with their surroundings, their environment, and are unable to even so much as speak rationally on any subject. They develop evidence of heart conditions, eye conditions such as cataracts. They may develop such as paralysis; they become generally debilitated because lots of these patients refuse to eat, and they have to be forced to eat, and so they lose weight and become and generally die with some disease that generally goes along with old age such as heart condition or high blood pressure. . . . Q. Now, assuming, Doctor, that Dell Denison, who is now dead, is of Syrian extraction; has reached the age of seventy-six years; is totally blind, or I might qualify that a little bit maybe that one eye could distinguish light and darkness, but otherwise a cataract condition of both eyes; apparently dissatisfied everywhere at times; apparently sometimes recognizes people, people whom she has known for years, and then speaks of them as being a woman and man from a different city; and suffering from what one medical man has called an uncompensated heart, hardening of the arteries and breaking down of one lung, - I think he called it a spernotic lung - would that be right? A. A sclerotic lung. Q. Yes, sclerotic lung, and at times what might be called emotional exuberance; when in the hospital imagining she was in the basement and there was dancing going on around her, and young men were coming to see the Catholic Sisters, and staying with them; what would be your opinion of the malady from which such an individual would be suffering? . . . Q. Now, a person suffering from that disease, if found to be suffering with that disease, and if found by an examining psychiatrist or physician to be in need of a guardian because of that, and to be, as he expressed it, unable to - that is, a lack of sufficient mind to even entertain a delusion, in December of 1943, on December 10th, 1943, what would you say would probably be her condition on and preceding
722 IN RE DENISON'S ESTATE. [23 Wn. (2d)
October 10th, 11th, 12th, of 1943? . . . A. Taking into consideration the past history given in the previous question, it would be my estimation that the woman was in the same mental state in October that she was in December. Q. And would a person in such mental state be competent to realize what their property is and to enter into any normal business transactions? A. I would say `no.'"
Mrs. Genevieve Rhyne, who cared for Mrs. Denison during a portion of the years 1942 and 1943, testified that the testatrix was obsessed with the idea that people were stealing from her and refused to eat anything that anybody brought in because she thought that they were trying to poison her. The witness was of the opinion that Mrs. Denison was irrational and unable to transact business.
Mrs. Matthew W. Hill of Seattle had known the old lady very well for about ten years and told of many peculiar incidents in her (Mrs. Denison's) life too numerous to mention in this opinion. One of the incidents that occurred while Mrs. Denison was in the Providence hospital was that "She thought that the hospital - her story to me was that the hospital had taken her home away from her and had put this place on her property. . . . She seemed to think it (the hospital) was her own house, but in some way they had altered it." While in the hospital Mrs. Denison secreted food that was brought to her and kept loaves of bread in her bed. Asked if she thought that Mrs. Denison was competent to make a will, Mrs. Hill stated:
"A. I think when she went to the Columbus Hospital she was definitely incompetent to do anything about her property. THE COURT: You are speaking now as far back as May and June in 1943? A. At the time she went to the Columbus Hospital. Q. Did you observe improvement in her mental condition after that? A. Not at all. She deteriorated even more from that time on."
Honorable Matthew W. Hill, husband of the witness to whom I have just referred and now superior court judge of King county, became acquainted with Mrs. Denison in 1930 and acted as her attorney in many instances. He told of her many peculiar actions. Among them was the desire
Sept. 1945] IN RE DENISON'S ESTATE. 723
to move to someone's house in a taxicab and the idea that the hospital was her home. His evidence as to her competency was:
"Q. Now, Mr. Hill, between the time that Mrs. Denison went to the Columbus Hospital on May 21, 1943, and the time she went to the Providence Hospital on October 12, 1943, were you sufficiently conversant with her mental condition to form an opinion as to her competency to make a will or devise her property? . . . A. I think so. Q. Assuming this will to have been made and executed on the 12th day of October, 1943, what would you say of her capacity to make and execute a will? A. I don't think she was competent at any time after June or July of 1943."
Mrs. Emma Johnson, a trained nurse with twenty-five years of experience, cared for Mrs. Denison at the Gardner sanitarium from the latter part of July to the last part of September, 1943. Mrs. Johnson testified that the testatrix refused to eat or to take her medicine because she thought that people were trying to poison her. She cached food under her pillow or in her bed. The conclusion of the witness was that Mrs. Denison was insane.
Mrs. Maxine Geisel had known Mrs. Denison intimately for four or five years before her death and, in testifying concerning her condition, said, "Her mind was not very clear about anyone or anything towards the last." The witness was of the opinion that Mrs. Denison was not mentally competent to handle her affairs.
Mathilda Primley had known the testatrix for five years just prior to her death and testified that she (Mrs. Denison)had the hallucination that everyone who came in was robbing her and that her mind wandered. She gave as her opinion that Mrs. Denison "Was not responsible for what she did or for what she was saying."
Mrs. Donna Tibbet testified:
"Q. What was her mental condition at that time? A. Oh, she seemed to be that she didn't know what she was doing. She said that they had taken the house away from me that she sold to me, and she said the Catholic people had taken the hospital away and tacked it onto my house, and she said. `Up there is your room,' and I said, `Oh, no,
724 IN RE DENISON'S ESTATE. [23 Wn. (2d)
they haven't moved the hospital,' and she said, `Oh, yes, they have; they have taken all of my property up there' and I said, `No, you just think that,' and she said, `You go and ask Mr. Hill,' and I said, `I will,' and I think Mrs. Hill came up there and she talked to her about it and asked her how she was, and she said, `All right, but I haven't got no home anymore;' she said, `The hospital took all my property and moved the hospital up on Aurora Avenue,' . . . Q. Did she have the capacity to realize and transact business? A. No. She didn't know one paper from another. As I told you a while ago, she said she was making them a deed, and she said, `Don't you get scared, Mrs. Tibbets, I won't make them no contract, and so she thought a contract was more `binding than a deed."
Mrs. Annie Micheal testified that Mrs. Denison thought "that people from Vancouver were going to kill her."
Mrs. Adele Milkey, sister-in-law of the testatrix, testified as follows:
"A. She wouldn't go with me. She said I wanted to take her there to freeze her, and so she wouldn't go with me."
Other witnesses, and there were twenty-one in all, testified that the testatrix was not mentally competent to conduct her own business or make a will.
Opposed to the evidence to which I have just referred is that of several witnesses, none of whom were medical men. Mrs. Katharine Cross, sole legatee under the will and executrix named in the will, met the testatrix in 1938 and kept in touch with her until her death. The witness testified that Mrs. Denison was of sound mind and was able at all. times to care for her property interest.
Vivian Cross, appellant's daughter, told about the fact that her mother had kept Mrs. Denison in her home, recalled many incidents concerning her welfare and habits and business ability. Her conclusion was that the old lady was able to understand normal business transactions.
Mrs. Martin, a friend of appellant, had known Mrs. Denison for five years and testified that her physical and mental condition was normal.
Mr. Cross was of the opinion that the testatrix was of average intelligence.
Sept. 1945] IN RE DENISON'S ESTATE. 725
C. J. Harader met Mrs. Denison in September, 1943, at the Cross residence and saw her at that place on an average of once each week. The witness did not detect anything "out of the normal manner of speech or intelligence," and testified that she was mentally competent to handle and understand ordinary business transactions. Mrs. Harader's conclusion was similar to that of her husband.
Mrs. Leta Cutrell, one of the witnesses to the will, was a friend and neighbor of appellant and was requested by appellant to witness the signing of the will. Mrs. Cutrell had not met Mrs. Denison prior to that time. She stated that Mr. Monroe Watt, the attorney who drew the will, read it to Mid. Denison before she signed it and explained it to her, and that Mrs. Denison said that it was her last will and testament and all of her estate went to Mrs. Cross.
Mrs. Myrtle Compton, another witness to the will who was called by the appellant to witness the will, had seen the testatrix on two prior occasions. She was of the opinion that Mrs. Denison was of normal intelligence. Asked if Mr. Watt discussed the contents of the will, Mrs. Compton stated:
"A. It seemed like once he talked about it and discussed parts about it, that this was her last will and testament, and that she was leaving all her personal property and belongings to Mrs. Katharine Cross, and did she clearly understand that, and she said, yes, she did, and that is the way she wanted it."
Mr. Monroe Watt, counsel for appellant in the trial court and in this court, prepared the will for Mrs. Denison. Prior to that time he had not met her, nor was he acquainted with Mrs. Cross or either witness. He was called to draw the will by appellant. He testified that he talked to Mrs. Denison at length about her property and concerning its disposition, that he drew the instrument at her direction. Mr. Watt was of the opinion that Mrs. Denison "was of sound and disposing mind and manner." The following excerpt from the evidence of Mr. Watt is of interest:
"Q. Then you asked her in detail about her property, didn't you? A. Not in great detail, no. Q. Well, didn't
726 IN RE DENISON'S ESTATE. [23 Wn. (2d)
you ascertain whether she had any money in the bank? A. No. Q. Did you ask her if she had any bonds or stocks?A. No. Q. Did you ask her if she had any war bonds? A. No. Q. Did you inquire if she had any savings accounts? A. No. Q. Did you ask her if she had disposed of any of her property recently? A. No. Q. Did you ask her who her attorney was? A. I think not. Q. She told you that she had an attorney? A. She told me that her property, that her affairs were handled by an attorney, that she had an attorney, and that she was dissatisfied. All I asked her about her property was what property she had. Q. All right. Now, just stick to this subject. You made no further inquiry about the attorney at that time? A. No. Q. You didn't ask what his name was? A. No. Q. You didn't ask where his office was? A. No. Q. You didn't ask how long he had served her? A. No. Q. And you didn't ask her what the nature of the trouble was? A. No. Q. Did you ask her why she didn't call her attorney instead of calling you? A. I don't know."
After the trial, the court took the case under advisement and later prepared a memorandum opinion. The opinion contains a lengthy and able review of all the evidence and the law touching upon this class of case. In speaking of the eccentricities of the testatrix, the court said:
"There are other bits of evidence in this record to which it is not necessary to refer, which indicate the troubled and disturbed mental condition of this woman, particularly during the spring, summer and fall of 1943. The court classifies these recurring accusations made against the counsel who had served her long and well, and against the nurses in the hospital, and numerous other people, as being the emanations of a mentally disturbed individual. They are quite a par of and quite in keeping with the record of her movements from the Tibbets to Columbus Hospital, from Columbus Hospital back to the Tibbets, from the Tibbets to the King County Hospital, from the King County Hospital back again to the Tibbets, from the Tibbets to the Gardner Sanitarium, from the Gardner Rest Home to Mrs. Coots, from Mrs. Coots to Mrs. Hughes, from Mrs. Hughes to Mrs. Benham, from Mrs. Benham to Mrs. Cross, and from Mrs. Cross to the Providence Hospital - all in a period of time from July to early October."
Sept. 1945] IN RE DENISON'S ESTATE. 727
In making his conclusions, the trial judge said:
"The court is willing in the present case to found his conclusion as to the mental condition of the deceased at the time of making her will on October 12, 1943, upon the trained and experienced judgment of the two physicians, and that of Mr. Hill, her counsel, as against the somewhat hurried conclusions of the witnesses who signed the will. The two medical witnesses testify that for some period of time the deceased had been suffering from senile dementia, a disease of the mind and body. This fact alone will not quite suffice. In the case of In re Miller's Estate, 10 Wn. (2d) 258, a case somewhat similar, the Supreme Court again announced what might be regarded as an important distinction in bases of this kind. It stated (p. 268):
"`If otherwise mentally sound, one is not incapacited from making a valid will by reason of his filthy habits, unsociability, and miserliness.'
"Page 273:
"`Even if Mrs. Miller suffered from hallucinations and delusions, unless they are related to the provisions of the will they are not material. It would not be sufficient to establish merely that a testator was the victim of some hallucination or delusion. The evidence must establish that the will itself was the creature or product of such hallucination or delusion.'
"The present trial court accepts with explanation but without reservation the supreme court's expressed view and pronouncement as to the proper rule of law in cases of the kind. Expressed in another way, the supreme court's opinion states that a person may be filthy, unsociable and miserly and still be legally competent to make a will. The high court has not said, of course, that evidence of habits of the kind may not be offered to establish the fact that the person was not a normal human being and insanity, in view of the law, is not the normal state. In fact, symptoms of the kind are regarded by members of the medical profession as symptoms to be weighed and considered along with any and all other symptoms of the patient. On the point the experienced medical men, unlike the situation in the Miller case, convincingly for the present court, agree that the patient was insane, suffering from a particular form of insanity. The physical and mental conditions which were found have already been stated, and will not be repeated. They are to the court entirely convincing.
728 IN RE DENISON'S ESTATE. [23 Wn. (2d)
"The second observation of the supreme court which, it is contended, is applicable here is predicated upon the existence of hallucinations or delusions. There are, the present court respectfully observes, mental cases where the mind is blank and there are no delusions of any kind whatsoever. In the present case, Dr. Nicholson, familiar with this general subject, spoke of this patient as having no `illusions' by reason of the fact that her memory was gone. He testified she was `confused,' `very forgetful,' as to recent and remote events; that [she] could not name the months; said she was born in 1933. Dr. Nicholson said `she was incapable of making or having delusions.'
"Dr. Lenz, the family physician who had known her for years, tells of this mental and physical condition from which she suffered `the last two years' or so. He tells, as do a long list of lay witnesses, of passing imaginary happenings which she would relate to him - the nurses were stealing her money, they were stealing her food and her medicine, she thought she owned the hospital property. These experiences are quite parallel to her former conveyance of some of her property to a stranger; her offer of her property to Mr. Hill, and the discretable [discreditable]picture of Mr. Tibbet driving people from his premises to prevent her transferring property - all of which came beford the execution of the will.
"The acts are not those of a sound or discriminating mind even in accordance with the somewhat low standard demanded of testators. The testatrix, in the summer of 1943, had reached a mental state where she would respond to the most and latest human kindly contact. . . .
"The court must answer the question - would an unsound mental condition, of the kind herein described, affect or in some unreasonable measure direct the distribution of the property of the deceased at the time of making a will in October of 1943?
"The answer of the court is that the mind of the deceased, under the circumstances here shown, becomes a veritable lens through which and by which the facts and circumstances of daily life are distorted and exaggerated. To the sick mind of this woman, her property and its value were forgotten; she had no money, as she thought; and everyone was `stealing from her;' her brothers, her sister, her counsel, the nurses were `stealing from her,' and she became a refugee fleeing from hospital to sanitarium, from the home of one casual acquaintance to that of another.
Sept. 1945] IN RE DENISON'S ESTATE. 729
Slights and grievances were imagined, distorted or exaggerated until a kind and patient brother was forgotten and a service rendered by a comparative stranger, of an actual value of one hundred dollars or less, became in her mind a sufficient consideration for the gift of a considerable estate to her temporary benefactor. The personal habits and conduct were not normal; her likes and dislikes were not normal; and her final act of distribution was not normal. It is the judgment of the medical witnesses in the case that the mind of this patient was suffering from a mental disease which impaired her faculties so that she could not think or reason with accuracy. With this conclusion the court agrees."
The evidence in the case upon which the majority rests its decision in part in the case of Gates v. Cole, 137 Iowa 613, 115 N. W. 236, is entirely unlike that in the case at bar. In that case senile dementia was sought to be shown by the evidence of nonprofessional witnesses. In passing upon the evidence, the court said that it did knot "furnish any foundation for the claim of senile dementia."
The case of Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, is a well-considered case in which the supreme court reversed the judgment of the trial court, upholding the will of a man named Wisner. The trial court based its judgment upon the holding that the testator was of unsound mind when he made his will. A study of that case reveals the fact that the opponents of the will depended almost entirely upon testimony intended to show that the testator was suffering from senile dementia at the time he executed his will. There is no reference in the decision to the evidence of doctors or of laymen who had known the testator for many years. The cited case is of no aid here because of the great difference in the factual situations of the two cases.
The trial court in this case did not base its decision upon the mere fact that Mrs. Denison was suffering from senile dementia, nor do I contend that the judgment should be affirmed upon that fact. I do contend, however, that the trial court was justified - more than that, he was compelled
730 IN RE DENISON'S ESTATE. [23 Wn. (2d)
- to reject the will because of the conclusive weight of the evidence produced by those who challenged the will.
In re Schafer's Estate, 8 Wn. (2d) 517, 113 P. (2d) 41, is not helpful either because in that case this court upheld the judgment of the trial court, who had seen and heard the many witnesses who had testified. In that case the doctor who had performed an operation on the testatrix the day after the will was drawn testified that she was of sound mind. The reason for the decision of this court in that case is reflected in the following statement in the last paragraph of the dissenting opinion:
"In view of the testimony of Mrs. Schafer's physician, it cannot be said that, at the time she made the will of January 13th, she lacked testamentary capacity."
The majority dismisses the cases of In re Forsman's Estate, 177 Wash. 38, 30 P. (2d) 941; In re Johanson's Estate, 178 Wash. 628, 35 P. (2d) 52; and In re Lundgren's Estate, 189 Wash. 33, 63 P. (2d) 438, with the remark that each case must be decided upon its own facts. That statement is quite true and applies to every case. However, this court in nearly every decided case supports its holdings by older cases. In the Forsman case this court upheld the decision of the trial court in holding a testator to be incompetent. In passing on that case we based our conclusion upon the fact that the trial court was the best judge of the facts and said:
"In the case at bar, as was said in Pond's Estate v. Faust, 95 Wash. 346, 163 Pac. 753,
"`The advantage of the trial court in hearing the witnesses and noticing their demeanor and candor, sympathy or bias, while testifying is of more importance than usual, for the case practically hinges on the credibility and capacity of witnesses. Courts will presume sanity until that presumption is overthrown by competent and reliable evidence to the contrary. . . . we are not prepared to hold that the evidence preponderates against the findings of the lower court.'"
The facts in the Johanson case are similar to those of the case at bar in so far as age and memory of the maker of the will are concerned. In that case we based our decision to
Sept. 1945] IN RE DENISON'S ESTATE. 731
a large extent upon the testimony of an attending physician who stated that the testator was incompetent.
In the Lundgren case we reversed the decision of the trial court which had upheld the will. In passing upon the issues presented, this court based its conclusion largely upon the report of physicians who had examined the testator in an insanity proceeding held sometime before the making of the will.
The facts in the case of In re Adams Estate, 164 Wash. 64, 1 P. (2d) 840, are so entirely like those in the case at bar that I quote from it as follows:
"The belief of the decedent that she would be cured of disease by the magnetic treatments, the laying on of hands, given to her by an almost illiterate person who claimed to have the power of healing by virtue of the spirit control over him by a number of dead physicians, is significant of the decedent's weakened mentality. There were other incidents, the testimony as to which is undisputed, indicative of decedent's lack of testamentary capacity.
"A physician who attended Mrs. Adams prior and subsequent to December 10, 1926, the date on which she made the will in question, testified that the decedent was insane, mentally incompetent to transact business. There was other testimony that, for a year or more immediately subsequent to December 10, 1926, the decedent had an unfounded fear that a certain physician was `going to make away with her body and put it in Lake Union is what she told me.' During this same period, she manifested fear of the respondent. Another witness testified that she saw the decedent almost daily from 1918 until the day Mrs. Adams died; that, in 1925 and 1926, the decedent was not competent to do any kind of business; that the deceased was fearful that a physician `was trying to do away with her;' that when advised to consult her attorney, the respondent, she said, `I have lost confidence in my attorney.'
"That shortly after the making of the will, Mrs. Adams forgot the matter, is clearly established by the evidence. Respondent's physician witness testified that Mrs. Adams was in an advanced stage of senile dementia at the time of her death. There was an abundance of medical and lay testimony, which respondent failed to meet, that Mrs. Adams was mentally incompetent to make a will December 10, 1926.
732 IN RE DENISON'S ESTATE. [23 Wn. (2d)
It seems to me that if this court is to follow precedent then the judgment in this case should be affirmed upon the authority of the one I have just cited. While it is true that cases of this nature are tried de novo in this court, it is also true that we do and must depend upon the conclusions reached by the trial court, who has seen the witnesses and has heard them testify. We have so indicated this to be the rule in the following cases: Richardson v. Moore, 30 Wash. 406, 71 Pac. 18; Pond's Estate v. Faust, 95 Wash. 346, 163 Pac. 753; In re Williams' Estate, 142 Wash. 637, 254 Pac. 236; In re Donohue's Estate, 143 Wash. 423, 255 Pac. 370; In re Riley's Estate, 163 Wash. 119, 300 Pac. 159; In re Larsen's Estate, 191 Wash. 257, 71 P. (2d) 47; In re Miller's Estate, 10 Wn. (2d) 258, 116 P. (2d) 526.
The rule just mentioned is my principal reason for affirmance in this case. The trial court saw and listened to the testimony of many witnesses through a long and well-presented case and decided in favor of the contestants upon conflicting evidence. A trial judge is much more than a commissioner named to take and collect evidence in a case. He is a judicial official provided for by our constitution and the laws of this state. He has had years of experience as a trial lawyer and as a judge. He is a student of human beings who come to the witness stand to give their stories. He has the opportunity and it is his duty to study the witnesses. In determining the credibility of the various witnesses and the weight to be given to their testimony, he takes into consideration their conduct and demeanor while testifying; their temper, feeling or bias, if any; their fairness or lack of fairness; their conduct and appearance while on the witness stand; the reasonableness or unreasonableness of the story they tell; their opportunity or lack of opportunity for knowing that about which they testify; the apparent capacity and intelligence of the respective witnesses and their capability to correctly observe and report the matters testified to by them. He gives such credit and weight to the testimony of each witness which under all the circumstances he deems such witness and his testimony is entitled to receive. The credibility of the
Sept. 1945] IN RE DENISON'S ESTATE. 733
witness and the force of his, or her, testimony and the weight that should be attached to it are all matters concerning which the trial judge is the best judge. As has been stated in many of our opinions, the trial judge has an opportunity to test the credit and weigh the evidence of the various witnesses, which is denied to us who read no more than the words on the typewritten pages of the statement of facts.
In this case the trial court first heard the evidence of the doctor who had been the testatrix's family physician for twenty-five years. He was a man who was better able to judge than any other the condition of the mind of Mrs. Denison. The testimony of a family or attending physician is entitled to great weight. Richardson v. Moore, 30 Wash. 406, 71 Pac. 18; Points v. Nier, 91 Wash. 20, 157 Pac. 44, Ann. Cas. 1918A, 1046; In re Bottger's Estate, 14 Wn. (2d) 676, 129 P. (2d) 518; In re Johnson's Estate, 20 Wn. (2d) 628, 148 P. (2d) 962.
Following Dr. Lenz's testimony we have that of two experts, doctors who have given the greater portion of their lives to the study of the mental condition of human beings. Added to this testimony was that of many witnesses who had known the testatrix intimately over a period of years and were certainly able to relate the change in her mental condition over quite a period of time. Opposed to this testimony was that of the interested legatee and her close personal friends, together with the testimony of the attorney who drew the will, a man who had never seen the testatrix prior to the day he was called to draw her will. He did not have that opportunity to ascertain Mrs. Denison's mental condition granted to the witness who had known her over a period of years. See In re Johnson's Estate, supra.
The evidence preponderates in favor of the decision arrived at by the trial court, and the judgment should be affirmed.
MILLARD and STEINERT, JJ., concur with SIMPSON, J.