83 P. 530 | Or. | 1906
delivered the opinion of the court.
The only question involved upon this appeal is the testamentary capacity of the deceased at the time of the execution of the will. It is contended on the part of the contestant that by reason of the morphine and other drugs administered to his father during his last illness, together with the progress of the disease from which he was suffering, he was not of sound and disposing mind and memory, and the instrument is therefore void. To support this contention, the contestant relies almost wholly upon the opinion testimony of experts versed in mental disorders, only two of whom actually saw the testator during his last illness. One of these called on the evening of the 17th of February, the day before the will was written, when the testator was in a stupor from the effects of morphine given
We have carefully read and considered all the testimony in the record, and also inspected the original will, which was submitted for that purpose. The testimony of friends and associates of the deceased shows that he was a careful, prudent and capable business man, who kept close watch over all his affairs, and fully understood all his business dealings. The evidence also discloses that for some time prior to the execution of this instrument he had been talking about making a will, and had told,< former members of his household what he purposed doing with a part of his property, and after, its execution again told at least two persons besides his daughter what disposition he had made of parts of his property by will, specifying, the particular property and to whom it was given. On February 16, 1904, he sent for his attorney, Mr. W. H. Holmes, of Salem, whom' he had frequently consulted in legal matters, and requested him to draw his will and gave him directions as to the disposition he desired to make of his property, all of which was noted down by his attorney, who returned the next day to draft the will, but, no witnesses being present, the matter was deferred until the •following day, when N. J. Judah, a personal friend of the
The only testimony given by the contestant himself regarding his father’s physical and mental condition is the following:
“Q,. Did you see your father during his last illness or shortly preceding his death ?
A. I saw him during his sickness ; yes.
Q,. State to the court the condition of his hearing, and confine your testimony solely to that one matter.
A. My father’s hearing was always bad. and he was very inattentive, making it harder for him to hear a person than one who had the same hearing. At a number of' times I noticed that when it came to giving his medicine that Miss Cotter had to talk very loud to him, and I had to talk loud to him, and had to repeat it a number of times. It was practically impossible to carry on an extended conversation with him.
Q,. What was the reason of that ?
A. He was dull; his mind seemed dull.
Q,. I mean about his hearing?
A. Well, the reason that it was so hard to carry on a conversation with him was because his hearing was so hard, and he did not look directly at you, and he had a poor conception of the reading of one’s lips if he did look at you.”
He does not contradict the testimony of Mrs. Holman or attempt to detail the mental condition'of his father, although he visited and talked with him on the day the will was signed and on the preceding day, and saw him a number of times during his last sickness.
Personal friends, who had been acquainted with him for years and who visited with him both before and after the execution of the will, testified that they found him suffering physically, but that his mind was clear, and he talked rationally about business and other matters and was in his normal mental condition, which was that of a careful
The decision of the circuit court will therefore be reversed, and this cause remanded for such further proceedings as may be proper, not inconsistent with, this opinion.
Reversed.