IN RE HILLS'S ESTATE. 205
Sept. 1921 Opinion Per BRIDGES, J.
[No. 16281. Department One. September 26, 1921.]
In the Matter of the Estate of MARY HILLE. «1»
WILLS (20) - REQUISITES - UNDUE INFLUENCE - EVIDENCE -
SUFFICIENCY. A will will not be set aside on the ground of being
written in a language the testatrix did not understand, if it
was executed by her after full explanation in her native
language as to its contents.
WILLS (55) - CONTESTS - ATTORNEY'S FEES. Where an action is
brought in good faith to contest a will and a prima facie case
made out, an award of attorney's fees against contestant in
the event his action fails is erroneous.
Appeal from a judgment of the superior court for
Adams county, Truax, J., entered September 13, 1920,
in favor of the defendants, in a will contest, tried to the
court. Affirmed in part and reversed in part.
Davis & Hell, for appellant.
Adams & Miller and Walter Staser, for respondents.
BRIDGES, J. - The purpose of this action was to annul
a will made by Mary Hille, deceased. Practically the
only ground for the contest was that all the will was
not read to the testatrix, that she did not understand
the English language, and that she did not know or
understand what she signed. The lower court sustained
the will, and the contestant has appealed.
Within a week before her death, Mrs. Hille requested
one of her sons to procure her will to be drawn, and
advised him what disposition she wished to make of
her property. Complying with her request, the son
had an attorney draw the will, and it was then taken
to the bedside of Mrs. Hille, who signed it and declared
it to be her last will and testament. The testimony
of some of those present at the time the will
was executed is to the effect that only a portion of the
«1» Reported in 200 Pac. 1034.
206 IN RE HILLE'S ESTATE.
Opinion Per BRIDGEs, J. 117 Wash.
will was either read to the testatrix or interpreted to
her in German, that being her native tongue. On the
other hand, a number of the witnesses testified that all
the will was read to the testatrix in English, and that
the son who did the reading explained and interpreted
it to her in the German language.
It will thus be observed that the question narrows
itself down to whether or not all of the will was read
to her, and if read, whether she understood its purport.
A careful reading of all the testimony convinces
us that the whole of the will was read to her
and that she fully understood it and knew its contents
when she executed it. It would not serve any useful
purpose for us to go into greater detail concerning the
testimony.
The executor and legatees under the will separately
defended. The trial court gave judgment against the
contestant for $150 for attorney's fee, on behalf of
the defending legatees. Appellant claims that these
attorney's fees should not have been allowed. In fixing
the attorney's fee, the court stated he felt that the
contestant was justified in bringing the action.
Our holding in the case of Preuss v. Berg,
102 Wash. 497, 173 Pac. 435, is to the effect that, where the
contestant brings the action in good faith and makes a
prima facie case, attorney's fees should not be
awarded against him in the event his action fails. That
case is controlling under the facts here. The court
therefore erred in awarding attorney's fees against the
contestant.
The judgment of the lower court is affirmed in so
far as it dismisses the action, and is reversed in so far
as it allows attorney's fees against the contestant.
PARKER, C.J., FULLERTON, MACKINTOSH, and HOLCOMB,
JJ., concur.