In Re Estate of Riggs

McBEIDE, C. J. The appellants now move the court for an order abating all proceedings ab initio and that the Circuit Court of Multnomah County be directed to dismiss the proceeding in relation to the contest of the will, the theory being that the right to contest the will is personal and dies with the person who has such right; that there is no such property *42 right in the contestant as can be bequeathed or pass to her heirs, and that no person can be said to be interested, within the meaning of the statute so as to permit a contest, who had not an interest existing at the time of the original probate of the estate. In support of this position appellants cite Storrs v. St. Luke’s Hospital, 180 Ill. 368 (54 N. E. 185, 72 Am. St. Rep. 211), and several other Illinois cases following the principal case. Also, Diffenderffer v. Griffith, 57 Md. 81, and Ligon v. Hawkes, 110 Tenn. 514 (75 S. W. 1072). None of these cases is exactly in point, as to the facts, with the present case although they bear some general resemblance. In the instant case the contestant, Mrs. Eiggs, had a decree in her favor, which conferred upon her the title to a large amount of property. The appeal taken by the proponents did not stay the effect of this decree or suspend its operation in any way. Prima facie, she had a valuable property right, which she could enforce by an application to the court at any time, and it was as much her property and the property of her estate as any other judgment could have been. There is no reason for holding that this will and contest was merely a matter in personam between Mrs. Eiggs and the executors or the heirs of her husband. It was more than that; it had in effect passed the title to all the property of the deceased Eiggs to the widow, and to that extent, it was an asset of her estate, which her heirs had a right to litigate. The principal ease, Storrs v. St. Luke’s Hospital, supra, cited by appellants, has been severely criticised by several courts and is not accepted in its entirety by any court: Ingersoll v. Gourley, 78 Wash. 406 (139 Pac. 207, Ann. Cas. 1915D, 570), and cases there cited. It is not only opposed by the weight of authority, but *43 is palpably unjust. Take the facts of this case as an example,—here, the court has found that this Avill is void on account of the wrongful and fraudulent acts of the proponents and the contestant is given a decree carrying with it title to the property mentioned in that will and taking it aAvay from the executors and legatees and vesting it in the widow of the deceased Riggs; and we are asked now by this motion to vacate that order without a hearing and thereby vest in the executors and legatees the title to the property, which the court below has held that they have attempted to obtain by fraud. To do this would be to strain the construction of the law in favor of what the lower court has found was a fraudulent attempt by proponents to obtain what they had no legal right to. There has been no substitution in this case and no attempt by either party to have substitution made. It is not too late to have such substitution made in this court if either party desires it. This is an interesting matter and really merits a more extended discussion than we have given it, but the business of the court is much congested, and we do not feel that it is necessary to pursue the subject further. The motion to abate ab initio is overruled. Motion Overruled.