70 P. 908 | Or. | 1902
after stating the facts, delivered the opinion of the court.
The evidence adduced is voluminous, and it is impossible to discuss it in detail, or even to cover its entire scope in synopsis without unduly prolonging the opinion. We will therefore recall merely such material facts as are deemed to have been
John W. Holman and Lucetta Holman were married in July, 1882; Holman at the túne being a widower, having four children then living, — Warren J., aged eight years; Anna Sophia, sometimes referred to as “Tennie,” seven; Henry J., since dead, five; and John Wheeler, three. The offspring of the marriage are Roy and Ruth, aged thirteen and eight, respectively, at the time of the trial of this cause. About the time Roy was born, or before, there grew up an estrangement between Holman and his wife, superinduced by the inability of her and his children to live in harmony. Being asked if she separated from her husband, she testifies that Tennie made things so unpleasant for her that she could not stay in the house; that she went away for a few days, and her husband begged and persuaded her to come back; that Mary Holman and Ella Holman came to her and told her that, if she would return, he would not let Tennie interfere any more; that she went back, and things were worse than ever; and that she went away again for three weeks. This occurred in about 1893, the exact date not appearing. The estrangement thus engendered was such that he contemplated divorce proceedings against her, and their relations continued more or less strained up to the time of his death. They lived together thereafter, but with more or less ill feeling and disagreement relative to the older children, the management of the household affairs, and the expenditures for their living, until on the 8th of October, 1899, he departed for California without her knowledge. On August 4, 1893, he deeded to Charles the undivided half of lots 5 and 6 in block 56, Couch’s Addition, in trust for Warren J., and for his use and benefit; his wife not joining in the conveyance. This is the deed which the will confirms. On the day preceding he deeded the home property to Anna Sophia, and on September 6th following it was reconveyed to him by quitclaim; but 'the execution of these deeds was never disclosed by him to his wife. It must be conceded that Holman was, until stricken with the dis
Warren J. testifies that his father wanted to give him power of attorney to transact and superintend his business and the expenditures of the family while he was away on his contemplated visit to California, but that witness declined to so act for him, and that he then said he would give it to Charlie.
He further testifies that Charles Holman took very little, if any, part in the conversation carried on at the time; that the testator sat near his desk, and that Charles sat back some little distance; that witness recalled but one remark of his, which occurred when the testator proposed giving the piano to Buelah
Mr. Herrman, with whom Holman was associated in business as a partner, under the firm name of J. W. Holman & Co., testifies that Holman was sick, off and on, for several years (that is, he would get sick and go home for a day or so); that one day he went to the doctor, and came back feeling very badly, and that when he disclosed the nature of his sickness they were all very much distressed; that witness induced him to go away to
Dr. Nichols testifies that Holman consulted with him about his case on May 11th, and he found that he had chronic Bright’s disease, but did not know for how long he had been thus afflicted, and from that time on, during the summer until October, he was under his advice; that on the 7th of October testator came into his office and said “he had gotten his affairs all straightened up, and was going away now for the vacation; ’ ’ that he told witness he had just made a will, and that Charles Holman would take charge of and look after his affairs while away; and that he never intended to go home again to live with his wife; that he had trouble at different.times, and had decided that they could not live together; that he was better when he went away than he was two months prior thereto; that at about that time he had an especial attack of stomach trouble, but during September and October he had been feeling very well; and that witness then saw nothing that would indicate he was not in the full possession of his faculties.
Mrs. Mary Holman, the mother of Charles, met the testator while he was in California, and testifies that he told her he was never going back home; that he wanted to make his home with her, and, when she suggested that her house was too small .to accommodate him, he asked if she thougiht he could go to Charles’ to live, and requested her to write him, and have preparations made for him when he returned.
It is further shown that Mrs. Lucetta Holman went to Hillsboro about the 15th of September, and returned on the 30th; that when she left she packed up Warren’s clothes in a cracker box, and sent them down to the office of Holman & Co., where he was employed, and locked up the house; that Holman was much vexed at his wife for so doing; that Warren went at once to make his home with Mrs. Norton, and that the testator thereafter took his breakfast and lunch with her, sometimes providing his own diet, which was confined to such as was prescribed by his physician. Holman was at home afterwards, however. On the 8th of October he left the house, not saying where he
Now, the strong contention of counsel for petitioner is that, while it is conceded the testator was possessed of sufficient testamentary capacity to make a will, yet he was so weakened and debilitated by sickness and disease, both in mind and body, as to make him a pliable subject in the hands of Charles Holman
After all, the difference in practical operation between the two theories is very slight. In order to show that the testator has made an unnatural disposition of his possessions, it requires evidence aside from the will, and so, where it is sought to establish the existence of a close confidential relationship. If undue influence, fraud, or coercion has been practiced, slight evidence
One can scarcely follow the testimony of Judge Northup touching the preparation of the will and other documents without being impressed that the testator not only knew and intelligently comprehended fully and completely what he was doing, but that he acted entirely upon his individual judgment.
His wife received a bequest in lieu of her dower, and as to this she had her election whether to take, or to retain her dower interest in his realty instead. But as to her it is very apparent what induced the particular provision. The idea first took root in 1893, which induced him to contemplate divorce proceedings against her on account of her conduct toward him, and when there could not have been a conjecture of any undue influence on the part of Charles or any one else. Two deeds were then made, disposing of the greater portion of his realty, and one was never recalled, but ratified by the will. Before going to California, Holman had again made up his mind to separate from his wife, induced, no doubt, by her treatment of him,— among other things, in turning his son away from home, locking the house against himself, and leaving no provisions for his convenience and comfort. This is shown by the testimony, not only of Charles, but Dr. Nichols, who talked with him on the day before he left; by that of Mrs. Mary Holman, who met him in California; and by his letters while away. It does not appear that there was any prearrangement or understanding had with Charles to make his future home with him on his return, although it may be inferred that he probably contemplated such a thing; but, from Mary Holman’s testimony, it would seem that the matter had not been fully settled in his mind until shortly prior to his return. Possibly there might have been such an arrangement prior to his going away, but one thing is certain above all others: Whatever arrangement was made in the end, it was induced by the action of his wife, and not by Charles Holman. He did not then intend to return to his home, or to live with his wife again, and the aversion which she induced in his mind had more to do with the particu
The decree of the circuit court will therefore be reversed, and a decree entered here upholding and giving effect to the will. . Reversed.