Ames v. Ames

• Court: Oregon Supreme Court
• Writing for the Court: MOORE, J. (after stating the facts).
• Citation: Ames v. Ames, 40 Or. 495, 67 P. 737 (Or. 1902)
• Decision Date: 17 February 1902
• Parties: AMES v. AMES.

67 P. 737

40 Or. 495

AMES v. AMES.

Supreme Court of Oregon

February 17, 1902

Appeal from circuit court, Linn county; R.P. Boise, Judge.

Proceeding by Andrew J. Ames to probate the will of Lowell Ames deceased. From a judgment of the circuit court reversing a decree of the county court refusing probate, Mary E. Ames decedent's widow, appeals. Affirmed.

This is a controversy respecting the probate of an alleged will. The proponent, Andrew J. Ames, filed a petition in the county court of Linn county showing that Lowell Ames, his brother died in said county April 16, 1899, being at the time a resident thereof, and leaving an estate therein of the probable value of $2,500; that he left a will in which he nominated the petitioner and Joseph S. Ames, another brother as executors thereof, but that the latter declines to serve as such; that the testator at the time of executing said will was over 71 years old, of sound and disposing mind and memory; that he left surviving him, as his only heir, Mary E. Ames, his widow, about 62 years old, residing at Sweet Home, in said county,--and praying that such will be admitted to probate, and letters testamentary issued to him. The will was executed January 30, 1899, and it appears therefrom that the testator bequeathed to his niece Anna Ames the sum of $500; that he devised to the petitioner the undivided half of his real property, or, in case he should not die seised thereof, bequeathed to him in lieu thereof the sum of $1,000; and that he gave, bequeathed, and devised to said Joseph the remainder of his property, making no provision whatever for his wife. The widow, contesting the probate of the will, denied the material allegations of the petition, and averred, in substance, that Lowell for several years prior to his death had been in failing health, debilitated in body, and of weak and unsound mind and memory; that his brothers, Andrew and Joseph, well knowing his physical and mental condition, abducted him from his home in January, 1899, and prevented him from returning thereto, and caused him to execute said will by means of undue influence and misrepresentation, particularly describing the conduct which it is claimed rendered the testament void; and that said will was not executed with the formalities required by law. A reply having put in issue the allegations of new matter in the contestant's objection to the probate of the will, a trial was had before said court, which found, from the testimony taken, that on January 30, 1899, Lowell did not possess testamentary capacity; that he was unduly influenced to execute said will,--denied the probate thereof, and declared the same null and void. On appeal from this decree the circuit court found that the testator at the time he executed the will was of sound and disposing mind and memory; that in making said will he was not acting under any undue influence; that the instrument was duly executed, and decreed that it was the last will of the deceased, admitted it to probate, and appointed Andrew J. Ames executor thereof,--reversing the decree of the county court, and remanding the cause for such further proceedings as might be necessary; and from the latter decree the widow appeals to this court.

H.C. Watson and S.M. Garland, for appellant.

H.H. Hewitt and J.J. Whitney, for respondent.

MOORE J. (after stating the facts).

It is claimed by contestant's counsel (1) that the testimony shows the purported will was not witnessed in the manner prescribed by law; (2) that, at the time it was executed, Lowell Ames was not of sound and disposing mind and memory; and (3) that he was at that time acting under the undue influence of his brothers, Andrew and Joseph, and hence the court erred in admitting said pretended will to probate. Considering these claims in their order, the testimony involved in each will be examined.

The will is dated January 30, 1899, is signed by the testator, and contains the following attestation clause: "The foregoing instrument, consisting of one sheet, was at the date thereof signed, sealed, published, and declared by the said Lowell Ames as and for his last will and testament, in presence of us, who, at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. N.M. Newport, Residing at Albany, Linn County, Oregon. L.C. Marshall, Residing at Albany, Linn County, Oregon." The testimony shows that Lowell having told the attesting witness Newport, an attorney at law, what testamentary disposition he desired to make of his property, and the names of the persons selected as executors, a memorandum thereof was made by Newport, who dictated to the attesting witness Miss Lena Marshall, a stenographer in his office, the contents of the will, which she reduced to writing, whereupon he proposed to Lowell that Miss Marshall and he would witness the will, if satisfactory. She was then called from an adjoining room into the main office, where the will was read to and signed by the testator in the presence of the witnesses, and signed by them in his presence and in the presence of each other; but he did not personally request Miss Marshall to witness the will, and may not have heard Newport when he invited her to do so. The statute prescribing the method of executing a testament, is as follows: "Every will shall be in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will, in the presence of the testator." Hill's Ann.Laws, § 3069. "A subscribing witness is one who sees a writing executed, or hears it acknowledged, and at the request of the party thereupon signs his name as a witness." Id. section 757. No evidence having been offered of a personal request by the testator to Miss Marshall to witness his will, is her signature appended to that instrument in pursuance of Newport's request a sufficient attestation of the testament? It does not appear from the testimony that the door to the room occupied by her was open when she was invited to witness the will, and hence it is impossible to say that any request was made to her in the testator's presence or hearing. In Nelson v. McGiffert, 3 Barb.Ch. 158, 49 Am.Dec. 170, Chancellor Walworth, construing a statute of New York which required the witnesses to a will to subscribe their names thereto at the request of the testator, said: "Not only the witnesses, but the testator himself, must, therefore, have understood that they were witnessing the execution of the will, in conformity to his desire and wish, although he may not have said, in terms, 'I request you, and each of you, to subscribe your names as witnesses to this, my will.' If such a formal request was necessary to be proved in all cases, and the witnesses were required to recollect the fact, so far as to be able to swear to it after any considerable lapse of time, not one will in ten would be adjudged to be valid." Mr. Schouler, in his work on Wills (2d Ed., § 329), discussing this subject, says: "The request that witnesses should attest and subscribe one's will may be inferred from acts and conduct of the testator, as well as his express words; the law regarding the substance, rather than the literal form, of such matters. It is not essential, therefore, that the testator should expressly ask the subscribing witness to attest his will. His acts, his gestures, may signify this request,--whatever, in fact, implies his knowledge and free assent thereto. Indeed, the active part in procuring the witnesses and requesting them to attest and subscribe is not infrequently borne by some friend, near relative, or professional counsel; and if such third person acts truly for the testator, in his conscious presence and with his apparent consent, the legal effect is the same as though the testator himself had spoken and directed the business." In Re Meurer's Will, 44 Wis. 392, 399, 28 Am.Rep. 591, it was held that no specific request by the testator to the witnesses to sign the will is necessary, and that if they subscribe their names in his presence, and without objection on his part, he knowing the fact that they are signing as witnesses, it is sufficient. Lowell having seen the witnesses attest his will, and knowing that they subscribed it in that capacity, and having made no objection thereto, the instrument was properly executed. Coffin v. Coffin, 80 Am.Dec. 235; Moore v. Moore, 2 Bradf.Sur. 261; Rutherford v. Rutherford, 1 Denio, 33, 43 Am.Dec. 644; Peck v. Cary, 27 N.Y. 9, 84 Am.Dec. 220; Gilbert v. Knox, 52 N.Y. 125.

It is contended by contestant's counsel that, on the day said pretended will purports to have been executed, Lowell was declared incompetent by a court which had jurisdiction of the person and subject-matter, and that the decree therein appointing a guardian of his person and estate raises the disputable presumption that he did not possess sufficient testamentary capacity at that time, to overcome which required evidence so strong as to leave no reasonable doubt as to his capacity to make a valid will, and, the testimony introduced by the proponent being insufficient for that purpose, the court erred in admitting it to probate. The testimony shows: That Lowell at the time he executed the will in controversy was 72 years old. That he had been married about 11 years, and lived with his wife on a farm in Linn county, Or. That in January, 1899, George Knable, his wife's son by a former husband, who had been living with them about 18 months, and a companion, accused him of committing the crime of sodomy, and told him that unless he paid them the sum of $1,000 each, and conveyed to his wife one-half of his real property, they would cause...