Le Gault v. Newell

196 P. 254 | Or. | 1921

McBRIDE, J.

Beyond the fact that the will made the attorney who drafted it the executor, there is no circumstance suggesting undue influence by him upon the testator, and this fact and the possible small advantage that might flow from it are circumstances far too slight to justify us in setting the will aside.

The testimony indicates that deceased was an obstinate, stubborn, rather quarrelsome old man, who had been divorced from his wife in a suit by her, in which she had, by division of property on their separation and later by decree in the divorce proceedings, received considerably more than half of the joint property, and that in the divorce suit contestant had taken the part of her mother. That this action on her part, while possibly justified, had angered and estranged her father there can be no doubt. Mr. Lavantura, Mr. Hardman, Mr. Krause, Mr. Lewis, Mr. Bell, Miss McKatcher, Mrs. Stowe, and Mrs. Strickland, all disinterested witnesses, testify to conversations indicating that deceased entertained a bitter and resentful feeling against his daughter and his ex-wife. While father and daughter may have exchanged civilities once in a while, it is evident that there was no warmth of affection on either side, and perhaps none on his part. In discussing this matter with acquaintances, for several years prior to his death, he repeatedly expressed his intention to leave nothing to his daughter. That this state of mind continued almost up to the time the codicil was drawn is shown by contestant’s own testimony. The evening before the codicil was drawn, while deceased was ill in the hospital, contestant, with her mother, Mr. Lavantura, and an attorney called in by contestant being present, and the matter of changes in the will being under discussion, the contestant, relating what occurred at the time, among other things testified as follows:

“Papa says, ‘I am going to make it just as soon as I can,’ and he started in to tell what he wanted to leave to this one and that one, and then he hadn’t left anything to me, and then mama, I believe, mama asked him what he was going to leave to his daughter and he says, ‘She has plenty, you are going to leave her what you have,’ and mama says, ‘Yes, but I am not dead yet and that is not very much anyway and you know she is not as young as she used to be; she has been working hard all her life and she ought to have some help from you.’ ”

She also stated that the attorney declined to go further, saying that nothing could be done, that he did not want to “force him to do anything if he was not willing.” So, even at this date a careful and conscientious attorney was of the opinion that it would be improper to attempt to persuade deceased to change his mind so as to include contestant among the objects of his bounty.

That he made no provision for the maintenance and education of his grandson seems rather peculiar, but it must be remembered that he himself was an uneducated Frenchman, and probably did not attach the importance that we Americans do to the necessity of an education. Besides, the child had a mother who seems to have been taking care of him, and deceased possibly thought it would be better to leave to her the burden of bringing him up so that he would have the whole bequest as a start in life on coming of age. The fact which appears probable from the record, that deceased had for three years before bis death left his daughter-in-law to take care of his grandson without assistance, indicates this point of view,

1. There is no evidence whatever of lack of testamentary capacity. The mind of deceased was sound and clear. That the contestant so considered it is shown by her efforts to induce him to change the disposition of his property either by making a new will or by means of a codicil; and there is much greater reason for believing that the codicil, giving the reversion to contestant, was the result of undue importunity by her, than that the original will was procured by undue influence. Neither is there any evidence of undue influence exerted by Newell. The evidence indicates that deceased was singularly obstinate and self-willed. One witness says, “the angels in Heaven could not change him”; another, “I would hate to undertake the job of influencing him”; and another, “he was a man who thought he knew it all, you couldn’t tell him anything, no use to argue with him.” The mere fact that the attorney who drew the will is named as executor does not create the presumption of undue influence or shift the burden of proof upon him? The principal beneficiary here is the grandson of deceased, and it would be gravely unjust to put upon him the burden of proving the absence of undue influence, simply because the testator appointed the attorney who drew the will, the executor; and yet that burden would practically fall upon him.

2. In cases where the will is grossly unjust or unnatural, courts will require strict proof where the principal beneficiary sustained confidential relations to the testator; but in the case at bar, when the circumstances and the relations of the deceased to his

daughter, and his general character are considered, the will does not seem unnatural or different from what might have been expected. The mere fact that the attorney who drew the will is named as executor does not create a presumption of undue influence: St. Leger’s Appeal, 34 Conn. 434 (91 Am. Dec. 735); Dale’s Appeal, 57 Conn. 127 (17 Atl. 757); Livingston’s Appeal, 63 Conn. 68 (26 Atl. 470); Compher v. Browning, 219 Ill. 429, 439 (76 N. E. 678, 109 Am. St. Rep. 346).

3. The fact that Newell did not disclose to contestant that he had prepared a will for. her father is not evidence of any fraud or undue influence on his part. His professional relations with the deceased precluded him from so doing in the absence of instructions from his client.

4. Upon careful consideration of the whole case we are of the opinion that the will was the true expression of the intent of the testator, and was the result of a conclusion formed by him long before it was executed, and that the decree of the court below was correct. The decree is affirmed. Affirmed.

Burnett, C. J., and Benson and Harris, JJ., concur.