178 P. 192 | Or. | 1919
Lead Opinion
It appears that A. J. Sturtevant, the deceased, was a merchant and land owner at Pilot Rock in Umatilla County. By close attention to business through a series of years he had accumulated a fortune in excess of $40,000. He died on July 3,1914. On September 27, 1910, on petition of his son, Mark Sturtevant, the County Court of Umatilla County made the following order:
“Now on this day the duly verified petition of Mark Sturtevant and L. E. Roy, praying for the appointment of a guardian of the person and estate of A. J. Sturtevant, coming on to be heard; and it appearing to the court that the said A. J. Sturtevant is personally present in court together with his attorney, Will M. Peterson, an attorney at law of this court, and that the said A. J. Sturtevant has this day filed an answer to the said petition'with the clerk of this court in which he admits that there should be a guardian forthwith appointed to look after his person and estate, and suggesting that T. J. Tweedy, a resident of Pendleton, Umatilla County, Oregon, and an old acquaintance and friend, be appointed; and the court having fully considered the said petition and the answer thereto, and having personally talked with the said A. J. Sturtevant and fully realizing the situation relative to his condition of mind and body, and the large estate which he owns, and being fully satisfied after a full hearing and consideration of all matters appertaining to the application for the appointment of a guardian, and being satisfied that a guardian of his*275 person and estate should he forthwith appointed by this court.
“It is now therefore considered, ordered, adjudged and decreed that A. J. Sturtevant is a person incapable of conducting his own affairs, and of properly caring for his health and general welfare; that a guardian of his person and estate should be forthwith appointed by this court; that T. J. Tweedy, a competent and qualified person, be, and he is hereby, appointed guardian of the person and estate of A. J. Sturtevant, and letters of guardianship shall issue out of this court to him as such upon his filing with the clerk of this court a bond with surety, first approved by this court, in the sum of Five Thousand ($5,000.00) Dollars, conditioned as by law required.”
At the time of his death the decedent was approximately eighty years of age. His wife died in 1910 prior to the appointment of his guardian. The aged couple had two sons, one of whom, Clark Sturtevant, died in 1906, leaving a widow who three years after-wards married Owen Carnes. The deceased son also-left two children, contestants here, Vivian Sturtevant, who died during the pendency of this proceeding, and a son, Lowell Sturtevant. The testator likewise had another son, Mark Sturtevant, the principal beneficiary in the contested will. By a former wife Mark had two sons, Clark and Andrew Sturtevant, and two daughters, Faye and Carrie Esther, each of the daughters being a beneficiary.
Mark Sturtevant married Alma, his present wife, in October, 1910. She was adjudged insane on January 30,1915, and was not present at the hearing below.
Condensed to its lowest terms, the attack on the will in question is twofold: (1) That by reason of insanity the testator was incapable of making a valid will; and, (2) that the disposition of his property embodied in the instrument in question was brought about by
“The burden of proof was upon the proponent to establish the testamentary capacity of the deceased by the preponderance of testimony.”
In a sense, á jarring note in the harmony of our decisions on this subject is found in some -language used in In re Will of Susanna Dunn, 88 Or. 416 (171 Pac. 1173), where it is said:
“The contestants have5 not established'by a preponderance of the evidence that the testator was mentally incompetent or that any undue influence was used to bring about the execution of the will in controversy.”
As shown in Simpson v. Durbin, 68 Or. 518 (136 Pac. 347), the burden of establishing the allegation that the contested will was the product of undue influence is
The reason underlying the rule as to the burden of proof respecting testamentary capacity and undue influence may be thus stated: If there is no will in existence, the property of a testator is distributed according to the statute of descents. If anyone would interrupt this course of distribution he must show not only a properly executed will but that there was a testator competent to publish such a document. The persons naturally interested in the estate under the statute of descents have not had their day in court where the will has been admitted to probate in common form. Consequently, the burden of making a different disposition of the property lies upon him who propounds the will to show that the testator had testamentary capacity and that the instrument in question was executed in due form of law. On principle, the question is different where the effort is to overturn the will on the allegation that it is the product of undue influence. This is a species of fraud by the exercise of which the nominal testator is supposed to have been deluded into making a disposition of property which is not the product of his own mind.
As to the delusion mentioned in the contestants’ petition, the circumstances appearing in evidence are substantially these: For about nine years prior to his death Clark Sturtevant, son of the testator, had managed the business of his father at Pilot Eock, having practically entire charge thereof. Under the son’s management the business had not prospered as it had under the direction of the father. Prior to her death the wife of the testator told him that- Clark had loaned some money to a cattle concern in the neighborhood. At his death the books showed an indebtedness of the son for goods he had used in his living. Still further, when an effort was made after Clark’s death to collect the accounts standing on the books, many debtors came forward and claimed that they had made payments to Clark in his lifetime, with which they had not been credited. The evidence shows that while the testator tolerated the wife of his son Clark, he did not like her. His aversion for her was increased by the fact that after the death of her husband she claimed from the father wages which she asserted'were due to her husband from the father for the management of the business, and caused the administrator of the son’s estate to commence an action at law against the father to recover $7,000 as wages of her deceased husband. The father retorted with a cross-bill in equity, demanding an accounting of the son’s stewardship during the period the latter managed the business at Pilot Eock. About this time, also, at the instance of their mother, the minor children of Clark Sturtevant instituted a suit against A. J. Sturtevant and his guardian to compel the conveyance to them of certain real property at Pilot Eock
There is some evidence that the testator made some inquiry as to whether any money was buried by his deceased son and that at various times he claimed that the son had taken his money during the management of the business; but with respect to the minor children, his statement to the attorney who drew the will in question was to the effect that he thought by receiving the money and the real property in the settlement of the litigation they had received enough from his estate and hence he chose to allow them only the nominal sum of $2.50 each. Having before him the facts that his previously prospering business declined under the management of his son, that the latter’s own books showed him indebted to his father, that the various debtors came forward with well-substantiated claims that they had paid money to the deceased son for which they had not received credit, and the statement made to him by his wife that the son had loaned money to the cattle concern, the testator had data upon which to found his assertion that the son had embezzled his money.
“Conceptions that originate spontaneously in the mind without evidence of any kind to support them, and can be accounted for on no reasonable hypothesis. The mind that is so disordered imagines something to exist or imputes the existence of an offense which no rational person would believe to exist or to have been committed, without some kind of evidence to" support if.”
On this branch of the case it is not for us to say whether in fact the son embezzled the money, but we must say from the record that there is evidence sufficient on that subject, which, presented to the mind of his father, would be a basis upon which the latter could render a judgment — without having a delusion imputed to him — although his decision might in our estimation be a harsh one.
Respecting the appointment of the guardian for( the decedent, it is said in Ames’ Will, 40 Or. 495 (67 Pac. 737):
“The appointment of a guardian for a person alleged to be non compos mentis, by a court having jurisdiction, must necessarily create a presumption of the mental infirmity of the ward; but such decree does not conclusively show that the testamentary capacity of the person under guardianship is entirely destroyed, and the presumption thus created may be overcome by evidence proving that such person at the time he executed a will was in fact of sound and disposing mind and memory.”
On the main question of the testamentary capacity of the testator, as stated in the Ames case:
‘ ‘ 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" (Citing authorities.)
This is the established standard in Oregon and has been followed without variance from Hubbard v. Hubbard, 7 Or. 42, until the present time. For instance, in Rothrock v. Rothrock, 22 Or. 551 (30 Pac. 453), the testator was so paralyzed as to be speechless and made his wishes known respecting the disposition of his property by nodding his head in answer to questions propounded by the scrivener. In Clark v. Ellis, 9 Or. 128, the characteristics of the testator were very largely like those detailed in the evidence about the author of the will here in question. There the testator was suffering from incurable disease, talked foolishly and was possessed of the notion that his partner had fixed a trap in his bath to suffocate him and that he was trying to get rid of him; all without foundation. He frequently wept and at times gave strong indications of insanity. Set the court sustained his will on
Many witnesses for the contestants here narrated certain eccentricities of conduct of the testator and of his habits of uncleanliness resulting from his inability to control the discharges of the intestines and bladder, and his apparent unconsciousness of the same; and many of his letters were introduced, written during the period from prior to his guardian’s appointment up to about the time the will in question was executed. These writings, especially during the year 1911, show 'incoherencies and repetitions of words and phrases. Reading the entire correspondence, however, shows that towards the latter part of the period his writing improved in coherency. It is shown also that he made many wills , writing some of them himself. Indeed, there are in evidence four of his wills, regularly executed so far as form is concerned, dated respectively July 19, 1907, January 19, 1911, February 7,1911, and December 29, 1911. All but the first of this quartette of wills were made in the same year and while the witnesses for the contestants all give their opinion that, he was insane and incapable of making a will, the contestants, however, rely upon the will of December 29, 1911, and propounded it for probaté soon after the old man’s death, and it was probated in common form. Under these circumstances the contest is really between the two wills, the one of December 29, 1911, and that of November 5, 1913.
Respecting the sanity of an individual, Section 727, L. O. L., reads thus:
“In conformity with the preceding provisions, evidence may be given on the trial of the following facts:— * *
*283 “10. The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer, and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given. * * ”
Many witnesses were called for the contestants who gave instances of the testator’s eccentric conduct, such as not recognizing old acquaintances, his failure to find his boarding place in the town of Pendleton and of inquiring how to get to various law offices with which he ought to have been familiar from previous acquaintance in the town, and with practical uniformity those testifying were asked their opinion as to whether he was capable of making a will. That is the ultimate question to be determined in the case, and propounding such interrogatories is on a par with calling upon witnesses in„a criminal case to give their opinion as to the guilt of the defendant. It is for the court to determine whether the testator was capable of making a will. The decisions are not entirely harmonious on this subject, but in the note to Atwood v. Atwood, 37 L. R. A. (N. S.) 591, the authorities are assembled showing that the weight of precedent is to the effect that in the contest of a will opinion evidence as to the capacity of the testator to make a will is incompetent.’ The principal case is reported also in 84 Conn. 169 (79 Atl. 59). See, also, Brown v. Mitchell, 88 Tex. 350 (31 S. W. 621, 36 L. R. A. 64, and note).
As frequently is the case in such litigation, the trial was permitted to extend over a very wide range of in
‘ ‘ The offer by defendant to introduce evidence of his general good character for honesty and integrity was properly overruled. While the complaint charged him with imposition and fraud in obtaining the sum of money in controversy, such claims were not essential to plaintiffs’ cause of action and need not have been either alleged or proved. The gist of the action was money had and received, and the right of plaintiffs to recover, and the amount of recovery in no wise depended upon the proof of any fraud or evil motive on the part of the defendant, in any part of the transaction.”
In respect to the delusion mentioned, the legitimate scope of the inquiry is to ascertain whether there was any evidence whatever upon which the testator
In support of the will we have the testimony of the attorney who drew it, to the effect that in obedience to a message sent to him by the testator from Pilot Bock, he went there from Pendleton and together he and the testator walked out into the orchard and the old man told him how he wanted the will drawn. Not being prepared to write it there, it was arranged that the attorney should return to Pendleton and that Sturtevant should call there within a few days, when the writing should be done and the instrument executed. In conformity with this agreement, the old man appeared in the attorney’s, office alone on November 4, 1913. At that time he had a written memorandum in Ms own handwriting in the shape of notes on the subject of his will, and, as the attorney states, Sturtevant then and there dictated to Mm the terms of the will, paragraph by paragraph. As soon as each paragraph was written it was read over to the testator, who approved it, and then they took up the next paragraph, which the old man also dictated, and so on through the will. Speaking of his grandchildren, the contestants, he gave as a reason for allowing them only a nominal sum apiece that they never came near him and that they had procured judgment against him for $1,000 and the real property at Pilot Bock already mentioned, and he thought that was enough for them. In support of the clause making Mark Sturtevant the residuary legatee he said that Mark had been treating him better lately and he thought he ought to have the property. There was no witness conveniently at hand
“At the utmost, this is but opinion evidence, which may or may not be correct, but it cannot be permitted to overcome the unqualified statements of an unimpeached witness of the existence of the very fact that the opinion says is impossible.”
The testator in Clark v. Ellis, 9 Or. 128, was very similar to the testator in the instant case and in summing up, Mr. Chief Justice Lord used this appropriate language:
“The point of time, then, to be considered at which the capacity of the testator is to be tested, is the time when the will was executed. This is the important epoch, and Judge Washington says: ‘The evidence of the attesting witnesses, and next to them of those who*288 were present at the execution, all other things being equal, are most to be relied upon. ’ In the case before us, none other than the attesting witnesses were present at the execution, and they have testified to the soundness of his mind at that time. The evidence of the attorney who drew the will according to his instructions, , and the positive and uncontradicted testimony of the subscribing witnesses to the will, of the soundness of the testator’s mind at the time the will was executed, establish beyond doubt that the testator was rational, and did know and understand what he was doing at the time the will was executed.”
It would seem that this language of the learned Chief Justice Lobd is decisive of the present contention.
In Wendl v. Fuerst, 68 Or. 283, 293 (136 Pac. 1), the court, speaking by Mr. Justice Ramsey, had occasion to contrast opinion evidence with that of witnesses who spoke directly to the question at issue, and the following excerpt from 5 Encyclopedia of Evidence, page 463, is quoted with approval.:
“Generally the testimony of an expert will not be allowed to overthrow positive and direct evidence of credible witnesses, who testify from their personal knowledge.”
As between the direct testimony of the subscribing witnesses and the statements of the other deponents to the effect that in their opinion the deceased was not competent to make a will, we have the opinion that the testator could not do such a thing, and on the other hand we have the positive statement that the testator did actually do the thing the others thought he could not do, and that, too, in a manner meeting all the elements and subserving all the conditions laid down as components of testamentary capacity. The case of the proponents, however, is well supported by testimony of old friends and acquaintances of the deceased, both
Dr. C. J. Smith, who resided for many years at Pendleton, was well acquainted with the testator during all that period and subscribed as a witness some of the wills mentioned, describes the old man thus:
“He was considered quite a strong man mentally and he had very strong convictions of his own and willing to express himself frequently.”
Speaking further, of the effect of a stroke of paralysis, he said:
“I don’t think it impaired his mental faculties so much, except, however, he was partially paralyzed at that time, and naturally left one side weak and he always used a cane, but he continued to transact his business for a number of years. Although physically weakened, nobody questioned his mind under the circumstances. * * He was rather cutting with his tongue, and witty. He could say very cutting things at times.”
The essence of Dr. Smith’s testimony may be expressed in his statement as follows:
“I have never believed Mr. Sturtevant to be insane. • As I said before, I have always known him since I first became acquainted with him in ’92 to be an eccentric character, and as he became older, more so.”
Other physicians, testifying for the contestants, gave their opinion that he was incapable of making a will, but the effect of their testimony is considerably weakened by the fact that after the guardian was appointed, Sturtevant was brought before the County Court of Umatilla County on the charge that he was insane, with a view to committing him to the insane
It is charged in substance by the contestants that the old man was unable to tell whether he was making a will or instituting a proceeding to remove his guardian. The undisputed fact is that the guardian had custody of. the will of December 29, 1911, and refused to surrender it to the testator. The latter was displeased with his guardian because he suffered judgment to be entered against him for the $1,000 mentioned and for the conveyance of the property in the settlement of the litigation with his deceased son’s children and their mother. It is charged also that he expressed his dissatisfaction with his guardian’s keeping him at Pendleton at an expense of $50 per month, when he could have kept him at Pilot Bock, amid home surroundings, for less money, and he complained of various expenses to which his estate was subjected under the control of the guardian. It is not a question of the honesty or integrity of his custodian; that is not here at issue and it may be said in passing that at best, speaking most strongly against him, all that can be said from the record is that men would differ' as to the wisdom of his judgment in his management of his ward’s affairs. There is nothing to impeach his honor or probity; but looking at it from the old man’s viewpoint, affected as he was by hostility towards the widow of his son on account' of her
It remains to consider the charge that the will was the product of undue influence. The only direct testimony in favor of the contestants on this point is that given by Faye Sturtevant, the daughter of Mark Sturtevant. She was evidently simple-minded and appeared to be incensed at her father because he had taken steps to prevent her marriage. Some of her testimony is quoted:
*292 “Q. What did Mark say to him about what he should do with his property, if anything?
“A. He said he should leave it to him; he thought he had deserved it, he had worked on the place and he thought he ought to have it, he had taken care of him and he thought the others were trying to get it away from him with robbing him. # *
“Q. What did Alma tell your grandfather, if anything, about what he should do with his property?
“A. She said something about the same, she said /'the rest of them were working for it and trying to get it away from him.”
On the contrary, Mark Sturtevant flatly denies that he undertook to influence his father in any manner in the disposition of his property. On cross-examination, when pressed by the attorheys for the contestants, he testified thus:
“Q. After.you got back there you and your wife were pretty careful not to have any trouble with, the old gentleman, weren’t you?
“A. No, sir. I was not any more careful than before and I don’t know as she was.
“Q. You were not trying to be good to the old man so he would think you were pretty good children and leave his estate to you, or anything of the kind?
• “A. No, sir. I know if I asked him to make me a will he would turn and act the other way. I knew him better than you did. If you wanted to bulldoze him into doing anything' you would get nothing, you had to let him have his own way.
“Q. That is what you and your wife did while up there the last time, wasn’t it, and you let him go his own way?
“A. No, sir. He done as he pleased. I never asked him to make a will.”
Remembering that under the authority of Simpson v. Durbin, 68 Or. 518 (136 Pac. 347), the burden is upon the contestants to prove the undue influence, we
‘ ‘ There is no doubt that he was influenced to do so by his affection for and confidence in his son, and by his gratitude to him for his years of devotion and service. But hatred or indifference is not indispensable to the validity of a gift, nor is gratitude or affection for the grantee fatal to it. * * The natural influence of the affection of a parent for a child is neither fraudulent nor illegal. * * Nor is the fact that the grantee or devisee occupies a fiduciary relation to his grantor or testator necessarily fatal to the gift. It is the use of that relation to secure a deed or devise against the free will or desire of the grantor or donor, and not the mere existence of the relation, that vitiates a grant. It is true that when an Unnatural or unreasonable gift or devise is made — such as one by a ward to his guardian, or by a helpless invalid to his nurse, or by a client to his trusted attorney — the presumption at once arises that the fiduciary relation was used to overcome the will of the grantor, and that the deed or devise is voidable. But when the natural gift of a parent to a loved and trusted child is in question, this presumption is met and overcome by the still stronger presumption that such a gift is the natural and reasonable act of the parent, and that the free will of the donor inspired the grant, uninfluenced by the trust relation.”
The doctrine is set forth in similar terms in In re Will of Hiram v. Allred, 170 N. C. 153, 158 (86 S. E. 1047, 1049, Ann. Cas. 1916D, 788, L. R. A. 1916C, 946, 949), quoting with approval from the opinion of Mr. Justice McClellan in Bancroft v. Otis, 91 Ala. 279 (8 South. 286, 24 Am. St. Rep. 908):
“With respect to testamentary dispositions, the primary presumption upon which the whole superstructure of the doctrine of presumed undue influence in contracts and gifts inter vivos rests is entirely lacking.*294 They- take effect upon the death of the donor. They involveno deprivation of use and enjoyment. There can be, with respect to them, no assumption that the donor would not voluntarily part with his property, since, in the nature of things, it must then pass from him to others selected by himself according to the dictates of his affections, or appointed by the law of descents' and distributions, and in either case without consideration moving to him. It is not out of the usual course of things, but in accordance with the exigencies of mortality, that the property should cease to be his, and should become that of another. And the very considerations which lead to suspicion, which- must be removed in transactions inter vivos — friendship,- trust and confidence, affection, personal obligation — may, and generally d.o, justly and properly, give direction to testamentary dispositions.”
The situation confronting the -old man in November, 1913, may be thus described: He was not without cause to be grieved at the management of his business by his deceased son. The children of that son ignored him and paid him no attention. Actuated by their mother, whom he did not like, they sued him for $7,000 and for some real property. His guardian offended him by settling the litigation in a. manner, according to the old man’s estimate, disadvantageous to him. Naturally an estrangement arose between him and Clark Sturtevant’s children. He grouped them with their mother, who controlled them, and from his viewpoint he had cause to ignore them in the final disposition of his property. He gave a plausible reason for his action. Displeased with his guardian, he sought to deprive him of the post-mortem management of his property as trustee thereof; all of which he could accomplish by making a subsequent will. His only surviving child was Mark Sturtevant and it was normally to be expected under the circumstances that he should
“It may be said the will is unjust, * * but, perhaps unfortunately, the law does not avoid a will because it fails to square itself with what persons other than the testator deem to be justice.”
And it was set down in Ames’ Will, 40 Or. 495 (67 Pac. 737):
“When a will has been properly executed, it is the duty of the courts to uphold it, if 'the testator possessed a sound and disposing mind and memory, and was free from restraint and not acting under undue influence, notwithstanding sympathy for persons legally entitled to the testator’s bounty and a sense of innate justice might suggest a different testamentary disposition. ’ ’
Further, as said in Van Alst v. Hunter, 5 Johns, Ch. 148, 160:
“It is one of the painful consequences of extreme old age that it ceased to excite interest, and is apt to be left solitary and neglected. The control which the*296 law still gives to- a man over the disposal of his property, is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent arts, but contains those very dispositions, which the circumstances of his situation, and the course of the natural affections, dictated.”
Under the circumstances, the opportunity for Mark Sturtevant or his wife to exercise undue influence is all that is shown on the subject, by a preponderance of the testimony. Considering his antipathy towards the mother of Clark Sturtevant’s children and to his guardian, which was not without foundation, and the estrangement which arose on account thereof, and the kind treatment which he says was given him by Mark Sturtevant, the disposition was a normal one which he had a right to make and is not, in our judgment, the product of any undue influence ’whatever.
The conclusion is that the decrees of the Circuit Court and County Court setting aside the will in question must be reversed and the cause remanded with directions to admit the will to probate as the last will and testament of A. J. Sturtevant, deceased.
Beversed and Bemanded. .Beheabing Denied.
Rehearing
On Petition for Rehearing.
(180 Pac. 595.)
On petition for rehearing. Denied.
In Bane.
Mr. Stephen A. Lowell, Messrs. Raley & Raley, Mr. W. M. Peterson, Mr. G. M. White and Mr. Frederick Steiwer, for the petition.
Mr. James A. Fee, contra.
The brief upon the petition for rehearing practically travels over the same ground occupied by the original briefs, and most of the contentions therein seem to us io be sufficiently answered in the original opinion.
‘ ‘ The result of the best considered cases on the subject seems to put the quantum of understanding, requisite to the valid execution of a will, upon the basis of knowing and comprehending the transaction or, in popular phrase, that the testator should, at the time of executing the will, know and understand what he was about. * * It is sufficient if the testator knew what he was doing and to whom he was giving his property * * and it is conceded in most of the cases that a man may be capable of making a will, and yet incapable of making a contract or managing his estate”: Brinkman v. Rueggesick, 71 Mo. 553, citing Ray Med. Jur. 313; 2 Redfield on Wills, Chap. 4, § 10; Thompson v. Kyner, 65 Pa. St. 368; Stubbs v. Houston, 33 Ala. 555. See, also, Stackhouse v. Horton,*298 15 N. J. Eq. 202; Crossan v. Crossan, 169 Mo. 631 (70 S. W. 136).
The decedent’s belief in his deceased son’s dishonesty had some evidence to sustain it: First, the son took charge of decedent’s store, which was a
Now these circumstances may be accounted for upon the theory of the son’s incapacity for business or carelessness in keeping his accounts, but, on the other hand, there are many business men who might adopt the same theory adopted by decedent, and attribute the losses to dishonesty and peculation; and this might be especially true with an old man who had conducted the business profitably himself, and who would not be likely to see any reason why his son could not have done the same. He would naturally ask:
“Why is it that my once profitable business shows a loss under my son’s management? What has become of the money which these debtors paid him, and for which there is no account?”
So there was some evidence upon which deceased could found a perfectly natural belief that the son had not dealt fairly with him. That belief was probably a mistaken one, but it was not an insane delusion.
The petition for rehearing is denied.
Beversed and Bemanded. Bbhearing Denied.
