Andersen's Estate, In re

• Decision Date: 26 September 1951
• Citation: 192 Or. 441,235 P.2d 869
• Parties: In re ANDERSEN'S ESTATE. POSTELLE et al. v. SHUHOLM et al.
• Court: Oregon Supreme Court

Page 869

235 P.2d 869

192 Or. 441

In re ANDERSEN'S ESTATE.

POSTELLE et al. v. SHUHOLM et al.

Supreme Court of Oregon, En Banc.

Argued May 22, 1951.

Reargued Sept. 5, 1951.

Decided Sept. 26, 1951.

Joe P. Price, Portland, argued the cause for contestants and appellants. With him on the brief was Stephen W. Matthieu, Portland

W. J. Prendergast, Jr., Portland, argued the cause and filed a brief for respondents.

HAY, Justice.

This is an appeal from a decree sustaining the will of Mrs. Randi Andersen, deceased, against a contest by Helen M. Postelle and Ralph G. Running, who are respectively niece and nephew of the testatrix, and claim to be her sole heirs at law. The grounds of contest are lack of testamentary capacity and undue influence.

Mrs. Andersen was about 85 years of age at the time of her death. She was of Norwegian birth, but had resided in Portland, Oregon, for many years. Her husband predeceased her, and it does not appear that she had ever had any children.

At some time around midday on March 28, 1949, Mrs Andersen, who had been in good health theretofore, suffered an attack of acute congestive heart failure. She was removed to Providence Hospital, where she remained until her death five days later. On March 29, 1949, she executed the will which is under attack in these proceedings.

The will made the following devises and bequests: A forty-acre tract of farm land in Clackamas County, Oregon, to Carlmer and Minnie Amundson, husband and wife; a residence property in Portland to Cecil Key and Mary Key, husband and wife; another residence property in Portland to Edna Lindberg, described in the will as testatrix' niece, but who is in fact her deceased husband's niece; testatrix' personal effects, household furnishings, and personal property situated in her home in Portland to Minnie Amundson, also described as testatrix' niece but actually her husband's; $1,000 to Anna Detwiler, of Seattle, Washington; $300 to Axel Monnes, of Portland; $100 to Evelyn I. Shuholm, of Portland; $300 to testatrix' nephew, Ralph Running, a contestant herein; $300 to testatrix' niece, Helen Postelle, a contestant herein; $500 to Ole Einangshaug, of Sona, Trondheim, Norway. Minnie Amundson was made residuary legatee, and Evelyn I. Shuholm was named as executrix, to act without bond.

It is alleged in the petition, in effect, that, at the time of the execution of the will, testatrix, by reason of illness affecting her body and mind, was lacking in testamentary capacity, and that the attacked instrument was not in fact her will but that she was caused to sign it through undue influence, dominion and control exercised over her by Minnie Amundson, a relative of hers by marriage.

Evelyn I. Shuholm, having been duly appointed executrix of the will, answered the petition by general denial, and affirmatively propounded the attacked will for probate in solemn form. Issue was joined by contestants' reply. A hearing was held before the probate court, and, on November 22, 1949, a decree was entered admitting the will to probate in solemn form and dismissing the contest. The contestants have appealed.

The elements of testamentary competency have been stated by us upon frequent occasions. We need not repeat them here. See § 18-101, O.C.L.A., as amended by ch. 136, Oregon Laws 1941; In re Walther's Estate, 177 Or. 382, 386, 163 P.2d 285, and cases cited. The burden of proof thereof rests upon the proponent. In re Holman's Will, 42 Or. 345, 357, 70 P. 908; Darby v. Hindman, 79 Or. 223, 224, 153 P. 56; In re Sturtevant's Estate, 92 Or. 269, 276, 178 P. 192, 180 P. 595; Brumbaugh v. Barber, 135 Or. 392, 399, 296 P. 42.

The evidence shows that testatrix suffered a heart attack on March 28, 1949. Dr. Joseph Amato was called, and under his orders testatrix was removed to Providence Hospital, where she received the customary treatment for a patient in a condition of acute cardiac failure. She was in much distress. Her breating was labored, and considerable torpidity of her circulatory system was indicated by marked cyanosis. By the following morning, her condition, as testified to by Dr. Amato and one of the nurses, appeared to have improved. At about 5 o'clock in the afternoon, Dr. Amato conducted another examination. He thought that, in comparison with her condition in the morning, she had begun 'to slip again.' He did not, however, visit her any further that day.

Evelyn Shuholm is a young woman of Scandinavian extraction. She is a law office stenographer of several years' experience. She appears to have been an intimate friend of the testatrix. At some time previous to her heart attack, Mrs. Andersen had made arrangements through Miss Shuholm to have Mr. Leo Levenson, a Portland attorney, call upon her for the purpose of advising her with reference to making a will, but, other matters intervening at that time, she canceled the arrangements. On March 29, 1949, Miss Shuholm asked Mr. Levenson to go with her that evening to the hospital so that Mrs. Andersen might confer with him in reference to drawing her will. They accordingly went to the hospital at about 7 o'clock p. m. Mrs. Andersen was in a ward with several other patients. Mrs. Amundson was visiting her when they arrived. Mr. Levenson had not met either Mrs. Andersen or Mrs. Amundson previously, and Miss Shuholm introduced him to them. Mrs. Andersen took hold of Mr. Levenson's hand, held it with a very firm grasp for half a minute or so, and called him by his first name. She said that she was glad that he had come; that she had asked for him to come. There followed a general conversation lasting about three-quarters of an hour. Mr. Levenson testified that he deliberately caused Mrs. Andersen to be engaged in such general conversation, with the idea that she might demonstrate by intelligent participation therein that she had testamentary capacity. The conversation was mostly between Mrs. Andersen, Miss Shuholm and Mrs. Amundson. Mr. Levenson for the most part listened, but did join in the conversation to some extent. During the general conversation, nothing was said about a will or about any business matter. Finally Mr. Levenson, having satisfied himself that Mrs. Andersen was 'fully competent,' said to her: 'Now, Mrs. Andersen, if you want me to draft your will, you will have to tell me just what you have in mind.' She thereupon began talking about her property. On Mr. Levenson's suggestion, Miss Shuholm took notes, partly in shorthand and partly in longhand, of Mrs. Andersen's instructions. He had those notes in court when he testified as a witness herein. Among other matters, Mrs. Andersen wished to devise a house and lot, situated immediately to the rear of her own home, to Cecile Key, a little girl about six years old, of whom she was very fond. Mr. Levenson suggested that if the parents were good people they might be depended upon to care for the child, and that it might be better to leave the property to them, thereby avoiding the necessity for involving it in a guardianship proceeding. This suggestion met with Mrs. Andersen's approval. She then talked about Ole Einangshaug, an old friend of hers in Norway, who had a family of children to support and was in necessitous circumstances, and for whom she desired to make some provision. Thereafter, she discussed the various bequests and devises which she had determined to make. She had a shopping bag under the table. She asked Mrs. Amundson to get the bag for her, handed it to Miss Shuholm, and asked her to open it. In the bag were many papers and deeds, and a considerable amount of old paper money folded and tied with string. Mr. Levenson said that he would have to go to his office and prepare the will. Mrs. Andersen told him she wanted him first to go to her house and get some other papers and the addresses of certain of the beneficiaries, including Helen Postelle, her niece. She told him that she would arrange with the nurse to leave the door of the ward open so that he could have access to the ward when he returned with the will. Thereupon, Mr. Levenson, accompanied by Mrs. Amundson and Miss Shuholm, took the shopping bag and went to Mrs. Andersen's home on Mississippi Avenue, where he procured the necessary papers and data. From there they went to Mr. Levenson's office, where Mr. Levenson, in the presence of the others, counted the money which was in the shopping bag, and found that it amounted to $3,890. There were also in the bag savings account books in various banks. Mr. Levenson then dictated the will to Miss Shuholm in accordance with the notes which she had made at the hospital, and Miss Shuholm typed it. Mrs. Amundson during that time occupied another room of the office. The will was completed at about a quarter past 10 o'clock, and Mr. Levenson and the two women thereupon returned to the hospital. The light was burning in Mrs. Andersen's ward, the door was open, and Mrs. Andersen was awake. They went in, and Mr. Levenson told Mrs. Andersen that he had the papers with him but that they would have to get witnesses. He said that he himself could be one, and Mrs. Andersen wanted to know why Miss Shuholm could not be the other. It was explained to her that Miss Shuholm was a beneficiary and therefore could not act as a witness. Mr. Levenson then went to the nurses' room on that floor, where there were two nurses in attendance. He asked if either of them would care to be a witness to the will, but they said that it was against the rules of the hospital for a nurse to do so. He then met the Sister Superior, who upbraided him for coming there at that late hour, and said that no visiting was permitted after 8 o'clock. Mr. Levenson explained that he was not a visitor, but was there on business. Thereafter, he went down to the main floor, where he talked with Mrs. Nellie Edmonds, a telephone operator employed by the hospital, who was just about to go on duty. Mrs. Edmonds agreed to act as a witness, and...