Brown v. Jones

The plaintiff, Brown, commenced this action in the superior court for Clark county, seeking recovery of all of the property of the estate of Mary E. Thompson, deceased, after payment of her debts, funeral expenses and administration expenses.

The theory upon which Brown seeks recovery is that he is entitled to the remaining property of the estate, in performance of a contract entered into by him with Mary E. Thompson, by which he was to care for the cemetery lot in which her husband was buried, and in which she was also finally to be buried, such care to be thereafter continued by him, in consideration of which she was to leave all of her property to him by her will.

The action was commenced upon a claim filed by Brown with the executrix and rejected by her, and was tried by the court, sitting with a jury; counsel upon both sides proceeding upon the theory that it was properly triable as a jury case. The trial so had resulted in verdict and judgment in favor of Brown, as prayed for, from which Mrs. Jones, the executrix, has appealed to this court.

A reading of this record, including the evidence as abstracted by counsel for appellant, convinces us that the jury could have well believed the controlling facts to be in substance as follows:

About the first of May, 1920, Mary E. Thompson, an aged widow, lived in Clark county, in a rural district, in a small home owned by her. Respondent, Brown, and his wife, lived very near Mrs. Thompson, and in a neighborly manner rendered her many acts of kindness. While other neighbors did likewise, the Browns seem to have been then her most intimate friends and neighbors. Mrs. Thompson's husband had died some five years prior to that time, and had been buried in a lot owned by them situated in a neighboring cemetery. Mrs. Thompson's worldly possessions, then and thereafter up to the time of her death, were of comparatively small value.

About May 1, 1920, Brown and Mrs. Thompson entered into an oral agreement, by which he was to care for the cemetery lot and the grave of her husband in a proper manner until the time of her death, when she was to be buried therein by the side of her husband, and Brown was to thereafter continue the care of the lot and both graves, in consideration of which she agreed that she would, upon her death, leave to Brown, by will, all of her property, subject to such debts and expenses of administration as might be lawfully chargeable against her estate.

Thereafter, on May 4, 1920, Mrs. Thompson made her will in due form, providing, so far as we need here notice its language, as follows:

"I direct my executor hereinafter named, as soon after my death as practicable, to pay my funeral expenses, the expenses of my last sickness and any other debts which I may owe at the time of my decease, and I especially direct that he procure and erect over my resting place a monument as nearly similar as possible to that over the resting place of my beloved husband, Frances A. Thompson, beside whom I desire to be placed; and for the carrying out of all these directions, I authorize and empower my executor to convert into money sufficient of my personal or real property to provide for the same.

"I give, devise and bequeath unto George F. Brown, my neighbor, all the rest, residue and remainder of my property of every character wheresoever situated."

On April 27, 1926, Mrs. Thompson made another will, providing, in so far as we need here notice its language, as follows:

"SECOND: I direct that my executrix erect over my resting place a monument as nearly similar as possible to that over the resting place of my beloved husband, Frances A. Thompson, beside whom I desire to be placed and to use necessary proceeds of my estate to carry out these provisions.

"THIRD: I have no children. I give and bequeath unto my friend, Mrs. J.E. Rogers, one pair of feather pillows.

"FOURTH: I give, devise and bequeath unto Nellie E. Jones of Vancouver, Washington, all the rest and residue and remainder of my property of every character wheresoever situated.

"FIFTH: I nominate, constitute and appoint Nellie E. Jones sole executrix of this my last will and testament, . . .

"EIGHTH: I hereby revoke any and all wills heretofore made by me."

On October 2, 1926, Mrs. Thompson died, having continued up to that time to reside in her home above mentioned. Prior to entering into the agreement between Brown and Mrs. Thompson about May 1, 1920, he had cared for the cemetery lot and grave of her husband, and thereafter he continued to do so in a proper manner in compliance with that agreement up until the death of Mrs. Thompson. He declares a willingness, manifestly in good faith, to continue to do all he agreed to do. Mrs. Thompson was buried in the lot beside her husband.

[1] The making by Mrs. Thompson of the will of May 4, 1920, was proven by the testimony of a witness who was present at the time that will was made and by his production of a carbon copy of that will, testified to by him as being an exact copy thereof. While it was conceded that Mrs. Thompson made a prior will, it was necessary for Brown to prove the time of the making of that will and its contents. There was testimony of another witness that Mrs. Thompson had, some two years prior to her death, said she had destroyed, or was going to destroy, her former will. That will could not be found after her death.

It is contended in behalf of Mrs. Jones, the executrix under the last will, that the carbon copy of the will of May 4, 1920, was not admissible in evidence. It seems clear to us that it was admissible, together with the oral testimony, as secondary evidence of the making and the contents of the lost or destroyed will, and also, under the circumstances, as in some measure confirmatory of the alleged contract between Brown and Mrs. Thompson. Worden v. Worden, 96 Wn. 592, 165 P. 501;Swingley v. Daniels, 123 Wn. 409, 212 P. 729.

[2] It is contended that the evidence does not support the verdict and judgment, and that the trial court erred in refusing to so decide, as was requested by appropriate motions made in behalf of Mrs. Jones, the executrix, and in this connection it is argued that, to sustain a judgment of recovery in a case of this nature, it must be supported, not only by a preponderance of evidence, but by evidence clear and convincing.

Conceding this to be the rule applicable to a controversy of this nature, we are nevertheless of the opinion that the judgment here questioned was supported by such evidence. Whether this controversy be viewed as one triable as a pure law action, by the court sitting with a jury, or viewed as one in the nature of specific performance, triable by the court without a jury, we are of the opinion that the evidence calls for an affirmance.

The judgment is affirmed.

MAIN and FRENCH, JJ., concur.