Margaret Whittier, age 82 years, died in the city of Seattle August 5, 1944. By nonintervention will executed December 15, 1937, she gave to some of her relatives all of her estate of the appraised value of slightly more than twenty thousand dollars. On petition of her executor the will was admitted to probate August 7, 1944.
One Irene Woodland, after purchasing from Mrs. Whittier in August 1941 certain real property on real estate contract on which there was due a balance of nearly seventeen hundred dollars when Mrs. Whittier died, was very attentive to her vendor. Irene Woodland filed petition September 7, 1944, for entry of an order setting aside order entered August 7, 1944, admitting to probate the will executed *Page 852 December 15, 1937, and that the last will and testament of decedent dated April 28, 1942, be admitted to probate either as a will of the decedent or as a codicil to the will executed December 15, 1937.
The purported will or codicil, which is in the handwriting of Mrs. Whittier, and disposes of only a fraction of her estate, reads as follows:
"April 28, 1942
"I want Mrs. Irene Woo[d]land to have all of my household furniture and personal affects my diamonds rings and fur coat and ruggs dishes and silver ware, and I also cancel the balance due me from her on the real estate contract on property for my share at 1419 and and fourteen seventeen Boylston Ave because she was nice and did so much to make me happy after she bought my place.
"Margaret Whittier"
"Witness Marian E. Boudreau "A.M. [or W] Baker"
The two witnesses, who lived in the same building in which decedent resided, to the foregoing testified that at request of Mrs. Whittier who called at their rooms between 9:15 and 10:00 p.m. April 28, 1942, they returned with her to her room, saw the decedent write the above, and at her request signed the paper as witnesses in the presence of the decedent and in the presence of each other. They further testified that Irene Woodland was present. Mrs. Woodland's testimony corroborates that of the two witnesses to the paper.
The court expressed the view that, at the time she executed the writing of April 28, 1942, admitted in evidence as exhibit No. 1, Margaret Whittier was mentally competent to make her will and in doing so was not acting under duress or undue influence of any person; that she wrote the document herself, intended it for and as her last will and testament, and so declared, and that "under the law and the evidence it is a valid will entitled to be admitted to probate."
The court entered an order admitting document dated April 28, 1942 (exhibit No. 1), to probate as the last will and testament of Margaret Whittier, deceased, and decreed that it supersedes and revokes the will dated December 15, 1937, *Page 853 "insofar as the said two wills are inconsistent or incompatible." The order directs executor Bell to distribute to the petitioner the property described in exhibit No. 1, to forthwith cancel the balance due on the real estate contract, and awarded judgment against the executor for all payments made by petitioner on the contract subsequent to the death of Mrs. Whittier. The executor has appealed.
Respondent moves affirmance of the judgment on the ground that appellant's brief contains no assignments of error as required by rules of this court.
Rule 16, subd. (2), Rules of Supreme Court, 18 Wash. 2d 17-a, provides that in all appeals, the brief of appellant shall, notmay,
"consist of the following matters, headed by the title thereof in distinctive type, or in type distinctively displayed, in the following order:
"(a) Table of cases;
"(b) Statement of questions involved;
"(c) Statement of the case;
"(d) Assignment of error;
"(e) Argument for appellant."
Subdivision 5 of Rule 16, supra, reads, so far as pertinent, as follows: "Each error relied on shall be clearly pointed out and discussed under appropriate designated headings."
There is no assignment of error in appellant's brief. We held in Hafer v. Marsh, 16 Wash. 2d 175, 132 P.2d 1024; that, in the absence of any assignment of error, an appellant is not entitled to have the contentions on his appeal considered.
Under that branch of his brief entitled "Argument" in distinctive type, appellant makes four inquiries and under each interrogation he submits an argument in the negative to sustain his position. The questions, which are not assignments of error, are as follows:
(1) "Is Petitioner's Exhibit 1 Admissible as a Testamentary Document under the Statutes of Washington?"
(2) "Was Petitioner's Exhibit 1 Established as a Testamentary Document?"
(3) "Was Margaret Whittier, the Decedent, Competent in April, 1942, to Execute a Will?" *Page 854
(4) "Did the Lower Court Have Jurisdiction to Enter an Order in This Proceeding Directing the Executor to Turn Over to the Petitioner the Property Described in Petitioner's Exhibit 1, and to Enter a Money Judgment Against the Executor?"
Rule 21, Rules of Supreme Court, 18 Wash. 2d 21-a, reads as follows:
"No alleged error of the superior court will be considered by this court unless the same be clearly pointed out in the appellant's brief: Provided, That the objection that the lower court had no jurisdiction of the cause or that the complaint does not state sufficient facts to constitute a cause of action, or that the supreme court has no jurisdiction of the appeal, may be taken at any time."
Appellant argues that two of the errors upon which he relies for reversal are within the exception to the general rule, which Rule 21, recognizes, that no alleged error of the trial court will be considered by this court unless the same be clearly pointed out in appellant's brief. It is insisted that the error in admitting exhibit No. 1 as a testamentary document is a plain or fundamental error apparent on the record, hence no assignment of such error was necessary; and (2) the trial court acted beyond its jurisdiction in making a partial distribution of the estate and in entering a money judgment against appellant, which is a fundamental error apparent on the face of the record of which this court will take notice without a formal assignment of error.
The rules which require appellant to set out in his brief the errors upon which he relies for reversal are important and should be followed. While we have the power to change the rules of this court, we should not except a particular individual from their operation or excuse their violation in a particular instance.State v. Currie, 200 Wash. 699, 94 P.2d 754.
The incorporation into Rule 21, supra, of the exception that we will consider, without any assignment of error, the trial court's want of jurisdiction over the subject matter, added nothing to the broad discretionary power of this court to consider fundamental errors apparent on the face of the record, even if such errors were not properly assigned. *Page 855
The superior courts sitting in probate are courts of general jurisdiction, including all matters in probate. Jurisdiction does not depend upon whether a judgment is correct or incorrect, but rather upon the question whether the court has the power to hear and determine the subject matter in controversy. Tucker v.Brown, 20 Wash. 2d 740, 150 P.2d 604.
Let us concede, arguendo, that the superior court, which is a court of general jurisdiction, erred in admitting exhibit No. 1 as a testamentary document and erred in making a partial distribution of the estate and in entering a money judgment against the executor. That the court had jurisdiction over the subject matter of the controversy needs no citation of sustaining authority, hence mere errors in the method of exercising its jurisdiction are not fundamental and are not within the exception to Rule 21, Rules of the Supreme Court. 4 C.J.S. 1736, § 1239.
As his brief does not contain any assignment of error, as required by the rules of the court, appellant is not entitled to have the contentions on his appeal considered.
When this cause was assigned to the writer, he wrote the foregoing in the hope that the court would honor its own rules, in view of its recent holding (Hafer v. Marsh, 16 Wash. 2d 175,132 P.2d 1024) that the rule in question must be followed. Our later opinions (Dill v. Zielke, ante p. 246, 173 P.2d 977, and State v. Brown, post p. 857, 176 P.2d 293) clearly declare that we are consistent only in inconsistency.
We are so vacillating, so lacking in regard for our rules — enforcing them in one case and by sophistical reasoning nullifying them in another when the two cases are indistinguishable except as to names of parties — that our opinions might aptly be entitled "Moods of the Supreme Court."
The great number of rules we have promulgated in even the past fifteen years may be accepted as some evidence of our delight in adopting and publishing rules. Our too frequent breaches of those rules "in the middle of the game" evince our delight in breaking them.
"Like children playing by the ocean who build sand-towers *Page 856 with constancy, and then destroy them with laughter." See "The Prophet," by Kahlil Gibran.
As observed by Mr. Justice Roberts in his dissenting opinion inSmith v. Allwright, 321 U.S. 649, 64 S. Ct. 757,
"The instant decision . . . tends [like others in which opinions will soon be published] to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion . . . today may not shortly be repudiated and overruled by justices who deem they have new light on the subject. . . . It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this court . . . should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions."
The following language in the dissenting opinion of Mr. Justice Roberts in Mahnich v. Southern S.S. Co., 321 U.S. 96,64 S. Ct. 455, is also apt:
"Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy."
Judge Robinson, speaking for this court in State v. Currie,200 Wash. 699, 94 P.2d 754, said:
"It is true that the court has the power to change and rewrite the rule, but that is a very different thing from excepting a particular individual from its operation or excusing its violation in a particular instance."
In that case, a defendant, convicted of being an habitual criminal and sentenced to confinement in the state penitentiary for life, attempted to personally conduct his appeal. We dismissed his appeal because he failed, in his ignorance of rules of procedure, to timely perfect his appeal. We said that:
"In attempting to conduct his own appeal, the appellant assumed an undertaking which was far beyond his capacity and understanding."
We refused to relax the rule which requires speedy determination of criminal appeals and denied to a man who *Page 857 had been sentenced to life imprisonment a review in this court simply because, in his ignorance, he had not complied with certain technical rules. It should be noted, however, that inState v. Brown, supra, we stated, in effect, that nothing we had said in prior opinions had any force in a current controversy.
Bad laws and rules can be endured; but the uncertain law or rule — one that shifts and changes each time it is invoked in the courts
". . . is as sore an evil and as heavy a curse as any people can suffer." Hole v. Rittenshouse, 2 Phila. 411, 417.
The judgment should be affirmed on the ground that there is no assignment of error in appellant's brief.
SIMPSON, J., concurs with MILLARD, C.J.
January 30, 1947. Petition for rehearing denied.