I cannot agree to a reversal of this case unless In reDenison's Estate, 23 Wash. 2d 699, 162 P.2d 245, is overruled. My reason is that the two cases, the one at bar and the Denison case, are so much alike, both as to the facts and the applicable law, that they cannot both stand without making the law relative to will contests unstable and in a state of confusion.
The student of this question will readily see that the facts in the Denison case were much more favorable for those contesting the will than those in the present case. Cases having facts alike, or similar, call for a rule that applies with equal force to both. *Page 872
The judgment in the present case should be reversed, but only after the Denison case is overruled. We should be consistent. As the law will stand, after the filing of this case, all that members of the bench and bar can do in will contest cases, will be to guess and then gamble on the ultimate decision.
MILLARD, J., concurs with SIMPSON, J.