Dean v. Jordan, 194 Wash. 661, 79 P.2d 331 (1938).

                DEAN v. JORDAN.                     661
 May 1938          Statement of Case.

      [No. 26885. Department One. May 12, 1938.]
     WILLIAM H. DEAN et al., Appellants, v. EDITH M.
      JORDAN, as Administratrix, Respondent./1

[1] WILLS - TESTAMENTARY CAPACITY - PRESUMPTIONS AND BURDEN
OF PROOF - INSANITY - SUFFICIENCY OF EVIDENCE. Where a will,
rational on its face and executed in due form, was admitted
to probate, the burden rests upon the contestant to show its
illegality by clear and convincing evidence of mental in
capacity; but where a condition of general insanity not of a
temporary kind is once shown to exist, its continuance is
presumed and the burden of overcoming the presumption by
proof of mental restoration or lucid period or delusion not
affecting the will, rests upon the one who asserts it, and proof
in such rebuttal should be clear and satisfactory; and,
nevertheless, the evidence was sufficient to establish the mental
capacity of a testatrix, 78 years of age, who, suffering from
melancholia, had been adjudged insane, and was released
and cared for by her nearest relative for sixteen years, during
which time her condition improved, the evidence of the
contestant being confined to the brief period at the hospital
while respondent's evidence covered a period of sixteen years.

[2] SAME - REQUISITES AND VALIDITY - UNDUE INFLUENCE -
PRESUMPTIONS AND BURDEN OF PROOF - EVIDENCE - SUFFICIENCY.
Notwithstanding there must be more than mere influence to
set aside a will and the evidence must be clear, cogent and
convincing, showing (1) fiduciary or confidential relation to
the testatrix, (2) active participation in preparation or
procurement, and (3) an unnaturally large part of the estate
involved, and other considerations as to health and age, etc.,
the facts in this case are sufficient to raise a presumption
undue influence calling for evidence in rebuttal; and such
rebuttal was sufficient where the testatrix was old and feeble
but capable of understanding what she was doing, and was
deeply attached to her niece, who cared for her for sixteen
years, when others refused to aid her, the preponderance of
the evidence establishing that the will expressed the true
intent of the testatrix.

Appeal from a judgment of the superior court for
King county, Jones, J., entered July 20, 1937, upon


1 Reported in 79 P.2d 331.

[1] See 68 A. L. R. 1313, 1318; 28 R. C. L. 85 (8 Perm. Supp.
6087).

 662    DEAN v. JORDAN.
                Opinion Per STEINERT, C.J.      194 Wash.

findings, dismissing a petition to contest a will, after
a trial on the merits to the court. Affirmed.

Todd, Holman & Sprague and Lowell P. Mickelwait,
for appellants.

Robert F. Sandall, for respondent.

STEINERT

STEINERT, C.J. - This is a will contest, based upon
alleged mental incapacity of the testatrix and alleged
fraud and undue influence practiced by the beneficiary.
The action was tried to the court and resulted in a judgment
upholding the will and dismissing the contest
proceedings. The contestants have appealed.

The testatrix, Orilla Dean, whose maiden name was
Orilla Rogers, married Alvin H. Dean in 1909. She
was then fifty-five years of age. Mr. Dean was at that
time a widower with three grown children, William H.
Dean and George S. Dean, two of the contestants herein,
and Carrie Dean Smith, now deceased, wife of
Miles R. Smith, and mother of Sybil Smith Wise and
Phoebe Smith Redding, the other two contestants. At
the time of her marriage, Mrs. Dean was possessed of
a considerable estate, presumably inherited from her
parents. Apparently, Mr. Dean then had very little
property. Mr. Dean's three children, being grown,
never lived in the home of their father and his second
wife, Orilla Dean.

Alvin H. Dean died in August, 1920, at Felida, in
Clark county, Washington. His estate, consisting of a
five-acre farm and a small amount of personalty, was
decreed by the court to be community property. After
appraisement showing a total value of $2,662, the entire
estate was awarded to the widow. The proceedings in
that estate are in no way involved here, mention thereof
being made only for the purpose of showing the
character and value of Mr. Dean's property.

On November 20, 1920, Orilla Dean executed a

                     DEAN v. JORDAN.                    663
 May 1938          Opinion Per STEINERT, C. J.

nonintervention will, wherein she bequeathed the sum of
two thousand dollars to each of her two nieces, Ora A.
Graham, of Seattle, and Edith May Jordan, then of
Tampa, Florida. The remainder of her estate she devised
and bequeathed to the children of her deceased
husband. The will designated Miles R. Smith, husband
of Carrie E. Smith and father of two of the contestants
above named, as executor. Carrie E. Smith died about
the year 1932. Ora A. Graham, one of the nieces above
mentioned, is the person against whom are made the
charges set forth in contestants' petition in this proceeding.

Shortly after the execution of her will, Mrs. Dean
delivered it into the custody of Miles R. Smith. At
about the same time, she also delivered to Vancouver
National Bank certain securities owned by her, principally
United States government bonds, of the aggregate
par value of $16,979.68; in the list accompanying
the securities, Mr. Smith was named as trustee, or
agent, of the owner.

During this period of time, Mrs. Dean, who was then
about sixty-six years of age and grief-stricken over
the death of her husband, felt very lonely, depressed,
and nervous. She wanted to make her home with Mr.
and Mrs. Smith at Vancouver, where she was then
staying, but they were either unable, or else unwilling,
to have her do so permanently. At any rate, they
wrote to Mrs. Graham, the niece at Seattle, asking her
to come to Vancouver and get her aunt. Within a
few weeks, or at most a few months, after November
20, 1920, Mrs. Dean, accompanied by her niece, left
Vancouver and went to Seattle.

Unfortunately, Mrs. Dean's condition did not improve
after going to live with Mrs. Graham. She became
more nervous, depressed, and melancholy, and
seems to have become obsessed with the idea that she

 664    DEAN v. JORDAN.
                Opinion Per STEINERT, C.J.      194 Wash.

had no money, but only "pieces of paper," as she expressed
it, although as already stated, she had considerable
liquid assets. There is also a suggestion in the
record that she developed suicidal tendencies. The
situation became so grave that on February 16, 1921,
upon the petition of Mrs. Graham's husband, Mrs.
Dean was adjudged insane and was committed to the
Western State Hospital at Steilacoom. The record in
that cause shows that the type of insanity with which
she was afflicted was melancholia.

In May, 1921, Ora A. Graham, upon her petition,
was appointed guardian of the person and estate of
Mrs. Dean. The estate was subsequently appraised at
$16,242.90. Shortly thereafter, at Mrs. Graham's request,
Mr. Smith forwarded to her all the securities
which had theretofore been held by him as trustee for
Mrs. Dean and kept in the Vancouver bank. In 1922,
Mr. Smith, at the instance of Mrs. Graham, forwarded
to her the will which Mrs. Dean had delivered to him
in 1920. Before doing so, however, he had the will
recorded in the office of the county auditor of Clark
county.

Mrs. Dean remained in the hospital at Steilacoom
for about six weeks and then was paroled and taken
to a private home in Seattle. This was done as an
experiment, in the hope that under domestic surroundings
Mrs. Dean would improve. However, the experiment
did not result satisfactorily, for Mrs. Dean gave
unmistakable signs of being irrational, and it was not
safe for her to be at large. Upon the advice of a physician,
she was taken back to Steilacoom on June 9,
1922. A few weeks later, however, she was again paroled
and was then taken to a sanitarium in Puyallup,
where she was cared for at a monthly charge of $150.
In September of the same year, the Western State
Hospital discharged her as improved. She remained

                     DEAN v. JORDAN.                    665
 May 1938          Opinion Per STEINERT, C.J.

at the sanitarium in Puyallup for almost two years,
during which time Mrs. Graham visited her at frequent
intervals. While at the sanitarium, Mrs. Dean improved
to some extent, both physically and mentally.

In 1924, she was taken to Meridian Sanitarium,
which is an old ladies' home in Seattle. There she
remained until 1931. This change was made in order
to reduce the amount of expense and also to enable
her to be nearer to Mrs. Graham. The testimony of
all the witnesses who were in a position to observe
Mrs. Dean was to the effect that, during this period of
seven years, she made a decided improvement and became
quite rational, although, because of her age, she
was very feeble. However, there was never any judicial
proceeding in which it was decreed or declared
that Mrs. Dean's sanity had been restored.

It appears from the record that Mrs. Dean, from the
time that she first came to Seattle, had the desire to
live with Mrs. Graham and on repeated occasions
begged to be taken to the latter's home. Accordingly,
in 1931, Mrs. Dean was removed to Mrs. Graham's
residence, where she lived until her death in 1936. It
is without dispute that, while there, she received every
attention possible and was made comfortable in every
way. It is also clear from the evidence that there was
a strong bond of attachment between the aunt and her
niece.

On September 20, 1933, Mrs. Dean, who was then
seventy-eight years of age, executed the will which is
now contested. In that will, she revoked her former
will, made Mrs. Graham her sole beneficiary, and also
named her as executrix to act without bond or intervention
of court. The circumstances under which this
last will was prepared and executed form the basis of
this contest.

Owing to her advanced age and feebleness and the

 666    DEAN v. JORDAN.
                Opinion Per STEINERT, C.J.      194 Wash.

grief occasioned by the loss of her husband, which
either directly caused her subsequent affliction or at
least greatly contributed to it, Mrs. Dean led a rather
secluded life in Mrs. Graham's home. Although she
was permitted to do as she liked at all times, she preferred
to sit quietly in the house and spend her time
reading. Visitors called from time to time, but inasmuch
as she was reserved by nature and also hard of
hearing, it was difficult to carry on any extended
conversation with her. She spent some of her time in
writing letters, several of which, appearing as exhibits
in the record, were written between 1931 and 1933 to
a relative residing in Wisconsin. The trial court considered
these letters as the strongest bit of evidence
produced by respondent, indicating to the court not
only a reasonable clearness of intellect on the part of
Mrs. Dean, but also a very deep appreciation of what
her niece had done for her.

During the last year of her life, and while residing
at the home of her niece, Mrs. Dean spent most of her
time in the upper portion of the house. This was because
it was difficult for her to go up and down stairs;
on one occasion she had fallen, and it was thought that
she might injure herself if she should use the stair
Way.

It appears from the evidence that, shortly before the
will in contest was executed, Mrs. Graham consulted
her own attorney and requested him to draw a will for
Mrs. Dean with Mrs. Graham as the sole beneficiary.
This, however, seems to have followed a suggestion
made by the attorney himself that Mrs. Dean should
have a will drawn. Mrs. Dean herself apparently had
no attorney in Seattle.

The attorney did not at any time call on Mrs. Dean
personally concerning the will, but drew it according
to Mrs. Graham's directions. Thereafter, the will was

                    DEAN v. JORDAN.                     667
 May 1938          Opinion Per STEINERT, C.J.

executed before two neighbor ladies acting as witnesses,
Mrs. Graham also being present at the time.
Although the will was not read aloud to Mrs. Dean in
the presence of the witnesses, she was asked at the time
whether it expressed her desire as to how she wanted
her property to go, and she emphatically replied that it
did. It also appears that the will lay on Mrs. Dean's
dresser for some time before and after its execution.

Owing to the fact that Mrs. Graham, the niece, died
a few weeks before Mrs. Dean, the court did not have
the benefit of any statement or explanation that Mrs.
Graham might otherwise have made regarding the
circumstances of the execution of the will or concerning
the charges brought against her in this proceeding.
While the evidence leaves much to be desired, the trial
court was compelled, as are we, to consider the case
from the record as made. At the trial, the subscribing
witnesses to the will testified to the effect that Mrs.
Dean was rational during the period of her residence
with Mrs. Graham and at the time of signing the will,
and that it was executed voluntarily, free from the
influence of anyone.

Mrs. Dean died August 29, 1936, which was nearly
three years after she had executed the will in question.
Mrs. Graham died suddenly about six weeks prior to
her aunt's death. Upon the death of Mrs. Graham, her
sister, the respondent Edith M. Jordan, who in the
meantime had moved from Tampa to Seattle, was appointed
guardian of Mrs. Dean's person and estate, and
continued to care for her aunt until the latter's death.
Mrs. Jordan was subsequently appointed administratrix
with the will annexed of the estate of Mrs. Dean.

While our statement of the case does not exhaust the
details shown by the record, it is sufficient to present
the questions involved in this appeal.

The first question presented by appellants' assignments

 668    DEAN v. JORDAN.
                Opinion Per STEINERT, C.J.      194 Wash.

of error is whether or not the testatrix possessed
testamentary capacity when she signed the will of September
20, 1933. In considering this question, reference
should be had to certain well-established principles
expressly adopted in this jurisdiction or otherwise
generally recognized.

[1] The right to dispose of one's property by will
is not only a valuable right, but is one assured by
law. Points v. Nier,
91 Wash. 20, 28, 157 Pac. 44, Ann.
Cas. 1918A, 1046; In re Murphy's Estate, 98 Wash. 548,
555, 168 Pac. 175; In re Tiemens' Estate, 152 Wash. 82,
88, 277 Pac. 385, 68 A.L.R. 753; In re Little Joe's Estate,
165 Wash. 628, 637, 5 P.2d 995; In re Larsen's
Estate, 191 Wash. 257, 71 P.2d 47; In re Phillip's Estate,
193 Wash. 194, 202, 74 P.2d 1015.

To exercise that right one must, of course, possess
testamentary capacity. Rem. Rev. Stat, SS 1394
[P. C. SS 10021].

The possession of testamentary capacity involves an
understanding by the testator of the transaction in
which he is engaged, a comprehension of the nature
and extent of the property which is comprised in his
estate, and a recollection of the natural objects of his
bounty. Hartley v. Lord, 38 Wash. 221, 80 Pac. 433;
In re Rutherford's Estate, 110 Wash. 148, 183 Pac. 27;
In re Anderson's Estate, 114 Wash. 591, 594, 195 Pac.
994; In re Roy's Estate, 113 Wash. 277, 193 Pac. 632; In
re Vaughn's Estate, 137 Wash. 512, 242 Pac. 1094; In re
Seattle's Estate, 138 Wash. 656, 244 Pac. 964; Eble v.
Block, 171 Wash. 223, 17 P.2d 867; In re Forsman's
Estate, 177 Wash. 38, 42, 30 P.2d 941; In re Larsen's
Estate, 191 Wash. 257, 71 P.2d 47.

Where a will, rational on its face, is shown to have
been executed in legal form, the law presumes that
the testator had testamentary capacity and that the
will speaks his wishes. In re Hanson's Estate, 87 Wash.

                     DEAN v. JORDAN.                    669
 May 1938          Opinion Per STEINERT, C.J.

113, 120, 151 Pac. 264; In re Roy's Estate, 113 Wash. 277,
281, 193 Pac. 682; In re Seattle's Estate, 138 Wash. 656,
663, 244 Pac. 964; In re Riley's Estate, 163 Wash. 119,
135, 300 Pac. 159.

If the will has been probated, the burden of proof
is upon the contestant to establish the illegality of the
will. Rem. Rev. Stat. SS 1387 [P. C. SS 10019]; In re
Williams' Estate, 142 Wash. 637, 254 Pac. 236; In re
McCombs' Estate, 164 Wash. 339, 2 P.2d 692. Expressed
in another way, the contestant has the burden
of proving every material fact alleged by him with respect
to the will. Higgins v. Nethery, 30 Wash. 239, 70
Pac. 489; Hunt v. Phillips, 34 Wash. 362, 75 Pac. 970;
In re Adin's Estate, 112 Wash. 379, 192 Pac. 887; In re
McKachney's Estate, 143 Wash. 28, 254 Pac. 455; In re
Larsen's Estate, 191 Wash. 257, 71 P.2d 47.

To overcome a will, the evidence must be clear,
cogent, and convincing. In re Jones' Estate, 178 Wash.
433, 34 P.2d 1111; In re Johanson's Estate,
178 Wash. 628, 35 P.2d 52; In re Ney's Estate,
183 Wash. 503, 520, 48 P.2d 924.

But where a condition of general insanity which is
not of a temporary kind is once shown to exist, it is
presumed to continue, and the burden of overcoming
such presumption by proving mental restoration or a
lucid interval rests upon him who asserts such facts.
In re Brown, 39 Wash. 160, 81 Pac. 552, 109 Am.
863, 4 Ann. Cas. 488, 1 L.R.A. (N. S.) 540; Criez v.
Sunset Motor Co., 123 Wash. 604, 213 Pac. 7, 32 A.L.R.
627; State v. Saffron, 146 Wash. 202, 207, 262 Pac. 970;
Fletcher v. Miller, 185 Wash. 299, 52 P.2d 304;
Schouler on Wills (6th ed.), SSSS 209, 210.

If the proof of insanity existing prior to the execution
of a will consists of an adjudication of insanity or
a decree declaring the person to be non compos mentis
and placing him under guardianship, the presumption

 670    DEAN v. JORDAN.
                Opinion Per STEINERT, C.J.      194 Wash.

is that such person was incompetent to make a will,
and the burden is then upon the proponent to overcome
such presumption by showing that the sanity of
the testator had been restored or that there was a lucid
interval at the time of executing the will, or else that
the delusion upon which the adjudication of insanity
was based did not affect the will. 1 Page on Wills (2d
ed.), 276, SS 162, 1208, SS 710. See, also, 1 Schouler on
Wills (6th ed.), SS 108; 1 Underhill on Wills 110, SS 86;
1 Woerner, American Law of Administration, 48, SS 27;
Atkinson on Wills, 186, 194, 494; Rood on Wills (2d
ed.), SSSS 137a, 137b.

The quantum or degree of proof required of the proponent
to rebut the presumption of insanity, under
such circumstances, is variously stated by the authorities
and text-writers, but, according to the weight of
authority, and what we conceive to be a proper and
reasonable requirement, the proof in rebuttal of the
presumption should be clear and satisfactory to the
trier of the fact.

Applying these principles, which we have endeavored
to set forth as a guide, we are clearly of the
opinion, as was the trial court, that the testamentary
capacity of the testatrix was established by the evidence.
Contestants' case on the question of such
capacity rested almost entirely upon the presumption
flowing from the adjudication and decree in 1921. They
offered little, if any, testimony relating to the period
between 1931 and 1936. On the other hand, respondent's
testimony covered a period of sixteen years, and
particularly that period of time during which the will
was executed. We agree with and affirm the decision
of the trial court upon the question of mental capacity.

[2] The other contention presented by appellants'
assignments of error is that the will was the product
of fraud and undue influence exercised by the

                     DEAN v. JORDAN.                    671
 May 1938          Opinion Per STEINERT, C.J.

beneficiary, Ora A. Graham. This phase of the case, while
distinct from the question of lack of testamentary
capacity, is nevertheless closely related to it. The rules
upon the former question are to a great extent applicable
to this, and need not be repeated. There are,
however, additional rules and principles applicable to
the immediate question which should be stated as an
aid to the solution of the second problem.

To vitiate a will there must be something more than
mere influence. There must have been an undue influence
at the time of the testamentary act, which
interfered with the free will of the testator and prevented
the exercise of judgment and choice. In re
Patterson's Estate,
68 Wash. 377, 123 Pac. 515; In re
Tresidder's Estate, 70 Wash. 15, 125 Pac. 1034; In re
Murphy's Estate, 98 Wash. 548, 168 Pac. 175; In re Roy's
Estate, 113 Wash. 277, 193 Pac. 682; Roe v. Duty, 115
Wash. 313, 197 Pac. 47; Perry v. Wetzel, 122 Wash. 129,
210 Pac. 362; In re Zelinsky's Estate, 130 Wash. 165, 227
Pac. 507; Barbee v. Barbee, 134 Wash. 418, 235 Pac. 945;
In re Seattle's Estate, 138 Wash. 656, 244 Pac. 964;
In re Riley's Estate, 163 Wash. 119, 134, 300 Pac. 159;
In re Simpson's Estate, 169 Wash. 419, 422, 14 P.2d 1;
In re Bradley's Estate, 187 Wash. 221, 59 P.2d 1129;
In re Larsen's Estate, 191 Wash. 257, 71 P.2d 47.

The evidence to establish fraud or undue influence
must be clear, cogent, and convincing. In re Roy's Estate,
113 Wash. 277, 193 Pac. 682; Roe v. Duty,
115 Wash. 313,
197 Pac. 47; In re Seattle's Estate, 138 Wash. 656, 244
Pac. 964; In re Jones' Estate, 178 Wash. 433, 34 P.2d 1111;
In re Larsen's Estate, 191 Wash. 257, 71 P.2d 47.

Nevertheless certain facts and circumstances bearing
upon the execution of a will may be of such nature
and force as to raise a suspicion, varying in its strength,

 672    DEAN v. JORDAN.
                Opinion Per STEINERT, C. J.      194 Wash.

against the validity of the testamentary instrument.
The most important of such facts are (1) that the
beneficiary occupied a fiduciary or confidential relation
to the testator; (2) that the beneficiary actively
participated in the preparation or procurement of the
will; and (3) that the beneficiary received an unusually
or unnaturally large part of the estate. Added to these
may be other considerations, such as the age or condition
of health and mental vigor of the testator, the
nature or degree of relationship between the testator
and the beneficiary, the opportunity for exerting an
undue influence, and the naturalness or unnaturalness
of the will. The weight of any of such facts will, of
course, very according to the circumstances of the
particular case. Any one of them may, and variously
should, appeal to the vigilance of the court and cause
it to proceed with caution and carefully to scrutinize
the evidence offered to establish the will.

The combination of facts shown by the evidence in
a particular case may be of such suspicious nature as
to raise a presumption of fraud or undue influence and,
in the absence of rebuttal evidence, may even be sufficient
to overthrow the will. In re Beck's Estate, 79
Wash. 331, 140 Pac. 340.

Considering the matter in the light of these rules, we
believe and hold that the facts in this case did raise a
presumption of undue influence, and that the presumption
was of such strength as to impose upon the proponent
the duty to come forward with evidence sufficient
at least to balance the scales and restore the
equilibrium of evidence touching the validity of the
will. The facts which move us to this conclusion are
these: (1) The age and physical condition of the
testatrix; (2) her prior mental history; (3) the
fiduciary and confidential relationship existing between
the testatrix and the beneficiary; (4) the

                     DEAN v. JORDAN.                673
 May. 1938          Opinion Per STEINERT, C.J.

opportunity to exercise an undue influence; (5) the
participation in the procurement of the will; and
(6) the unusually large proportion of the estate received
by the beneficiary.

But even though we recognize the presumption
and the burden thereby imposed, we agree with the
trial court that respondent's evidence rebutted the
one and satisfied the other. Contestants' assertion
of fraud and undue influence has no support in positive
evidence, but is wholly dependent upon the
force of the presumption. On the other hand, the
evidence of respondent was to the effect that the
testatrix, though old and feeble, was nevertheless
capable of understanding and did understand what
she was doing; that she was deeply attached to her
niece, the beneficiary under her will, and appreciative
of what the niece had done for her.

Nor is there any direct evidence of any act or
conduct from which an undue influence could be
inferred. The will was perfectly natural. The beneficiary
was closely related to the testatrix by ties of
blood. She was the nearest in point of location to
the testatrix, and there had been a close companionship
between them for over fifteen years. No one
else wanted or would have the elderly woman at
a time when she most needed help. The niece did
not force herself upon her aunt, but took her in
charge at the request of others. The record of the
guardianship is the best evidence that she faithfully
and affectionately ministered to her aunt in
her declining years.

The full circumstances under which the will was
procured no one will ever know, for the niece and
the aunt are both dead. But we are unable, in the
light of all the circumstances shown, to stamp the
will as a product of fraud or undue influence. To

 674    LEWIS v. COLEMAN.
                     Syllabus.                194 Wash.

the contrary, we believe that it was established by
the preponderance of the evidence that the will expressed
the true intent and resolution of the testatrix.

The judgment is affirmed.

BEALS, MAIN, HOLCOMB, and GERAGHTY, JJ., concur.