186 P. 1038 | Or. | 1920
There are two questions now presented for our consideration. The first is, Was Samuel Gr. Collins, on June 9,1916, mentally competent to make a will? The second is, Was such will the result of undue influence, exerted upon the testator by the defendants Ada L. Long and her husband John H. Long?
The history involved in the investigation of the case, as gleaned from the pleadings and the testimony, is about as follows:
Samuel Gr. Collins, who was 94 years of age at the time of the execution of the document tendered for probate as his last will and testament, had been married twice, his first wife having died after bearing two children who still survive, being the defendants Ada L. Long and John E. Collins. Subsequently he married the plaintiff Laura A. Collins, who survives as his widow, by whom he had six children who survive, and are plaintiffs here, together with five grandchildren who are the offspring of a deceased daughter. Both marriages occurred in Iowa. The family moved to Oregon in 1875, where the deceased purchased the farm which constitutes practically all of the estate involved in this litigation. It appears that on April 25, 1877, the defendant Ada L. Long, who was then, according to her own testimony, fifteen years of age, and according to her stepmother, seventeen, was, for some reason which the record does not undertake to explain, driven from home, penniless, and forbidden to return, and thereafter the mention of her name in the household
“A person under guardianship does not on that account lose his right to make testamentary disposition of his estate, if he retains sufficient mental capacity to execute a will.”
In the case of Ames’ Will, 40 Or. 495 (67 Pac. 737), this court speaking by Mr. Justice Moore, said:
“The rule is settled in this state that if a testator at the time he executes his will understands the business in which he is engaged, and has a knowledge of his property, and how he wishes to dispose of it among those entitled to his bounty, he possesses sufficient testamentary capacity, notwithstanding his old age, sickness, debility of body, or extreme distress.”
“Well, he told me that he had two sets of children and said that this farm in Oregon, which amounted to about two hundred acres, was purchased or procured with money that came from land that was owned by the mother of Mrs. Long and John Collins, — his son John— I think it was back in Iowa, and that when he married his present wife they practically kicked Mrs. Long out to hustle for herself, and she had been making her own living for years, ever since, and he felt as though he had never done anything for her and had done her a*68 great wrong and lie felt as though he would like to make that wrong right in making this will. That came up when I suggested to him why he did -not make John and Mrs. Long’ equal in .his bounty, and he said that he believed that he could right it, and while he wanted his wife to have a living during her lifetime, he felt that the other children had been practically raised out of the proceeds of this farm, and Mrs. Long nevér had any benefit from it. So he thought by giving her the north one half of the land and allowing his wife to have the other one half during her lifetime and giving the other one half that his wife had during her lifetime, to all of the children — and especially as John had always enjoyed the use of this farm he ought to be classed with the other children — he could make things right. ’ ’
W. A. McCutcheon, one of the subscribing witnesses to the will, says:
“At the time he talked very intelligently and seemed to have quite a business head on him, and was very firm in any remarks he made and wanted everything done exactly the way he wanted it. I do not believe you could change the old man’s mind at all. He seemed to be perfectly competent to make a will and seemed not to forget it, and seemed to know what he was talking about.”
Mr. Fred P. Offerman, the other subscribing witness, says:
“I think he was competent, as far as I know. He acted that way. He was rather an old man but I supposed he was competent.”
_ ‘ ‘ That the said Ada L. Long is a scheming, unprincipled woman without sense of honor, and for years was what is commonly called and termed ‘An Adventuress,’ and it was a part of her scheme and purpose in getting him to go with her to the State of Washington, and getting permission to take him to the said state and out of the State of Oregon, was to get his property.”
No evidence was offered in support of these allegations and they simply add to the weight of wrong heaped upon this defendant by the occupants of the house to which she had a right to look for guidance and protection. The statement of the testator to his attorney, that he was making this bequest in an effort to atone for the hideous cruelty of driving an unformed country girl, not more then 17 years old, out into a hostile world to fend for herself, is much more impressive. Practically every legal question presented in this case, has been fully discussed and settled In re