Mendenhall's Will
- Reporters:
- , ,
- Before:
- Wolverton
Lead Opinion
On Motion to Dismiss the Appeal.
Mr. Justice Wolvertondelivered the opinion.
This cause originated in the county court, was appealed to the circuit court, and now an appeal is sought to be prosecuted to this court. What purported to be the last will and testament of Esther Louise Mendenhall was, upon the petition of Rush Mendenhall, who is nominated as executor therein, admitted to probate by the county court in common form. Subsequently E. and E. R. Mendenhall, the respondents herein, filed objections to the probate thereof, and the following named heirs and legatees, along with the executor, were cited to appear and show cause why the probate of said will should not be revoked, the will set aside and declared invalid, namely, Gyrus J. Mendenhall, E. J. Mendenhall, Hattie Mendenhall, and Lizzie C. Mendenhall. None of the last-named parties appeared, but the contest was carried on wholly between E. and E. *544R. Mendenhall, as contestants, on the one side, and Rush Mendenhall, executor, as proponent, on the other. At the hearing the county court set the will aside, and in his attempt to appeal to the circuit court from such decree the proponent, on February 6, 1901, served a notice thereof upon the contestants only, directed to them and their attorney, and reciting “that the said Rush Mendenhall hereby appeals,” etc., without designating himself as executor of the last will and testament of the testatrix. There was a motion to dismiss the appeal in the circuit court, which being overruled, the decree of the county court-was affirmed after a hearing upon the merits. The respondents now move to dismiss the appeal to this court, upon the following grounds: (1) That the proponent prosecuted the appeal to the circuit court in his individual, and not in his representative, capacity as executor; (2) that the notice of appeal was not served upon all the heirs and legatees; and (3) that the entire testimony taken at the trial in the county court does not accompany the transcript.
Opinion on the Merits
On the Merits.
Mr. Justice Wolvertondelivered the opinion.
Esther Louise Mendenhall died March 29,1898, leaving a writing bearing date November 19, 1897, purporting to be her last will and testament. It nominates the appel*546lant, who was her husband, as executor, giving him all her personal property except certain articles bequeathed to Elizabeth C. Mendenhall, a daughter of her son Elbert J., and the use of her real property during his life ; to her sons Edward C. and Elgin R. one dollar each; to her son Cyrus J. it devises one third of her estate at her husband’s death; to Elbert J., one third for the use and benefit of himself and family during his life, thereafter to be divided equally between his wife, Harriet, and their issue; and to her said granddaughter, Elizabeth C., the remaining one third. This instrument was admitted, to probate by the county court of Multnomah County on the 5th day of May, 1898, and on December 6th following, the respondents filed a petition contesting it. As presented, the writing has subscribed thereto the name of Esther Louise Mendenhall, admittedly her genuine signature, and the names of Ed Dennison and Lizzie B. Dennison as subscribing witnesses. The date, “November 19th,” and the words, “Portland, Oregon,” appearing beneath the signature of each of these witnesses, are all in the handwriting of the testatrix. The year in which it was executed is indicated by the printed words, “in the year of our Lord, One Thousand, Eight Hundred and,” followed by the written words, “Ninety-seven,” in the handwriting of Elbert J. Mendenhall, referred to in the testimony as “Bert,” who drew the will, using a printed form for the purpose. The attestation clause is all in print, except the name of the testatrix and the word “her,” appearing in three places. The single point of controversy is whether the testatrix subscribed the instrument or acknowledged its execution in the presence of the subscribing witnesses; the contestants’ contention being that her name was not appended thereto at the time the witnesses signed it, nor until a long time thereafter, and that when it was subscribed by her the witnesses were not present.
The executor deposed as follows : “I was the husband of deceased at the time of her death, and knew her handwriting ; that the signature, viz., Esther Louise Mendenhall, to the instrument purporting to be the last will of deceased, which is now shown me, is in the handwriting of my said wife.” This proof was reduced to form by the attorney, but was corrected by Judge Northup in the particular whereby it is shown that the testatrix was above the age of twenty-one years when she “signed,” or, as said in Ed Dennison’s proof, “made,” the will. Judge Northup, who was presiding, testifies that he, at the request of the attorney, examined the witnesses orally; that he must have asked the subscribing witnesses whether Mrs. Mendenhall’s name was subscribed to the will at the time they subjoined theirs, and that they answered in the affirmative, although it was not written at the time; that his recollection is that Mrs. Dennison stated that Mrs. Mendenhall did not sit down at all, but was standing in the room during the whole time, and that Dennison made in substance the same statement, but that witness had no distinct memory upon the subject; that he thought the oral testimony of the executor was in substance as contained in his affidavit or formal proof; and that the taking of his testimony was *552suggested by witness because the other witnesses had not said that the signature attached to the will was that of the testatrix at the time of their signing. Lizzie B. Dennison testifies in this proceeding that the testatrix brought the will into their kitchen while they were eating, and handed it to Mr. Dennison; that witness procured a pen and ink from their bedroom for him, and he signed it; that testatrix requested him to sign, and that witness then signed it, also at her request; that she said it was her will; that they signed in her presence and in the presence of each other; that, after they signed, witness gave the will back to her, and she went out; that when she gave the paper to Dennison it was partially folded, and witness did not see her name at all; that she did not pay any attention to the paper; that part of the paper was printed, and that she did not see any written word that she could remember ; that she did not read any of the printed matter of the attestation clause; that she could not say whether the clause was on the will or not; that Mrs. Mendenhall did not sign the will in her presence or in the presence of Mr. Dennison, and that she did not testify previously before the county court that testatrix signed in her presence, nor did she testify that Mrs. Mendendall acknowledged to her that the name now appended was her signature ; that there was nothing said about her name; that she testified at the former examination at the request either of A1 or Rush Mendenhall— probably Al; that Mr. Rush Mendenhall was not in the room when she signed her name to the paper as a witness ; that there was no one in the room at the time but her husband, the testatrix, and herself; that the little girl, Lizzie Mendenhall, came in some time after Mrs. Mendenhall went out; that Mrs. Mendenhall came back in the room shortly after, and talked to her about the will, and said she wanted to get it made out and put away before Mr. Mendenhall, the old gentleman, came back; *553that she gave no reason for so doing, only that he had been trying to find out if she made it (the will) or not; that witness signed the paper some time before Christmas, three or four months before the old lady died ; that Rush Mendenhall was not in the city at the time, but came back in two or three days or a week; that the words “Portland, Oregon,” are neither in her handwriting or her husband’s, and she does not remember whether those words were there when she signed, or not, and that she did not remember seeing any signature to the purported will at the time.
Mr. Dennison testifies substantially the same as his wife, except as to matters that took place between Mrs. Dennison and the testatrix after she left the room where they signed the will; that Mrs. Mendenhall said, “ T have got a piece of paper here I want you to sign,’ and I says, ‘What is it?’ and she said it was her will, and she handed it to me, and I says, ‘Where shall I sign ?’ and she says, ‘Right here,’ and she pointed out the line where I should sign, and I signedmy name. * * I wrote my name, and my wife also ;” that the words “Portland, Oregon,” were not there when he signed ; that the testatrix did not have the pen in her hand to write with, and that he wrote his name with the pen, and then handed it to his wife ; that he did not see any writing on the paper, it being folded about half ; that there was not another person in the room except the three when he signed; that he did not read the attestation clause; that he was going to sign on another line, and the testatrix told him not to sign there, because she wanted to sign there herself ; and that he did not see her name where it is signed now. Elgin R. Mendenhall testifies, in brief, that the first time he saw the alleged will was when he lived on Third Street, in the early part of 1898, either the latter part of January or the early part of February; that his mother brought it to him ; that the words “November 19th,” his mother’s signature, and the words “Portland, Oregon,” *554appearing twice, were not there, but that the names Ed Dennison and Lizzie B. Dennison were ; that she had prepared another will on letter paper, which was filled out, signed by her, and witnessed; that the difference between the two instruments was that witness was included in the latter and not in the former ; that she said she would not sign the former because he was not so included ; that his father employed him to probate the pretended will, and gave him $50 for it, but that he had an understanding with him at the same time that he was to pay him in money or deed him property equivalent in value to a one-third interest in his mother’s estate, and that Ed was to give the old gentleman a deed to whatever interest he may have in such estate, and that, depending upon this agreement of his father, he procured the wall to be probated; that he declined to swear his father to the petition for probate, and that he had it done by Reed ; that he prepared the affidavits for the witnesses and for his father, being the formal proof of the will; that his father told him that he never saw the testatrix sign the will, but that he knew the signature was in her handwriting; that his father did not keep his agreement with him to give him money or property equivalent to the third interest in his mother’s estate ; that he subsequently proposed making a will by which he intended giving him that amount, which would have been satisfactory to witness, but he ascertained he was going to disinherit Cyrus J., commonly called “Doc,” and witness would not assent to that, and thereupon his father declined to do anything, which precipitated the present litigation to defeat the will.
Ed Mendenhall testifies that the first time he saw the purported will his mother’s signature was not attached, nor were the words and figures “November 19th,” or “Portland,’ Oregon,” but that the witnesses’ names were subscribed to the attestation clause; that this was early in the year 1898 ; *555that his mother showed the will to him in the front room, next her bedroom; that she brought it to him, and said that Al was not mentioned, and that she had not signed it, and did not want to do so; that he saw her shortly afterward, and she had prepared a will herself, providing for Al, which she had signed, and which was regularly witnessed ; and that, in a conversation relating to the purported will, his father told him that he did not see his mother sign the instrument. This recounts in a brief way the most material evidence in the record relative to the sole question left for our determination, which is one purely of fact: Did the testatrix sign the will in the presence of the attesting witnesses, or acknowledge to them, either expressly or impliedly, that the signature, “Esther Louise Mendenhall,” if not subscribed at the time, was hers, previously written? If either act was in reality performed in the manner suggested, which must be determined from the evidence in the record, the will should be admitted to probate; otherwise not.
The executor’s testimony as to the execution of the will is proof positive that the testatrix signed the will in the presence of the attesting witnesses, and the attestation clause subscribed by the witnesses asserts as much. Aside from these two circumstances, the testimony in the main has an exactly opposite bearing. The two subscribing witnesses say with emphasis that the testatrix did not write her name to the will at the time, and that the old gentleman was not in the room; that no one but the testatrix and the two witnesses was present, and consequently the executor could not have seen his wife sign the paper. In this testimony they are not discredited by their formal proofs. Again, the two sons, Al and Ed, both testify that their mother showed them the will and discussed its provisions with them after the witnesses had signed, and that their mother’s name was not appended at the time. With *556them, as with the subscribing witnesses relative to her signing in their presence, there is scarcely any room for mistake. The matters of detail are stated with clearness and precision. Added thereto is another feature. It seems probable, upon an examination of the different signatures, that the ink used by the testatrix is of a slightly different shade from that used by the witnesses, indicating that she did not sign with the same ink. But we do not consider this of great weight, as there is so much liability of mistake about it. These proofs have a direct bearing upon the vital issue as to whether the testatrix signed the will in the presence of the attesting, witnesses. Collaterally, both Al and Ed swear that the old gentleman told them he did not see their mother sign the will. This finds strong corroboration in the circumstance that the father’s first proof when the instrument was originally presented for probate spoke merely to his knowledge of the identity of her handwriting or signature, without so much as intimating that he saw7 her sign. Then it is very probable that he made such a contract with A1 to induce him to assist in probating the will as A1 declares he made. lie admits in his testimony that Ed informed him that he had prepared and executed a deed to him such as was contemplated by the agreement, and that he had Reed draw his will providing for Al, but not for Doc, and that he and A1 disagreed about that. Beyond this, the old gentleman evinced an active interest relative to the will. Within three or four hours after his wife’s death he searched for and found it in her-trunk, examined it, and kept it in his pocket from that time on; nor would he let Ed take it into his hands at any time. Other matters might be alluded to, such as the strained relations of the parties concerned, which inferentially give weight to these observations, and militate against the executor’s contention. The positive assertion of the executor that he saw his wife sign is unquestionably *557overborne by the direct testimony of the subscribing witnesses and his sons Al and Ed. There is not the remotest reason for believing that his testimony outweighs that of the four, while, upon the other hand, every circumstance and consideration gives strength and potency to the contention that she did not so sign in the presence of the witnesses. The attestation clause cannot elucidate this feature of the controversy, as both the subscribing witnesses remember distinctly concerning the subject, and speak positively as to the fact. Neither was the signature of the testatrix affixed before the signing by the witnesses. While the testimony of Mr. and Mrs. Dennison is somewhat indefinite in their assertion that they did not see her signature, in that they did not assert explicitly that the signature was not there, Ed and A1 Mendenhall testify directly to the fact that it was not there some time afterward; hence it could not have been there when they signed.