Cline v. Larson

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; ROSSMAN; SLOAN; DENECKE; O'CONNELL
• Citation: Cline v. Larson, 234 Or. 384, 383 P.2d 74 (Or. 1963)
• Decision Date: 12 June 1963
• Parties: In the Matter of the Estate of Rilla T. Stack, Deceased. Thomas W. CLINE, Sr., and Margaret Smith, Respondents, and Elizabeth A. Allen, Intervenor-Respondent, v. Edna D. LARSON, individually and as Executrix of the Estate of Rilla T. Stack, deceased, Appellant.

Page 74

383 P.2d 74

234 Or. 384

In the Matter of the Estate of Rilla T. Stack, Deceased Thomas W. CLINE, Sr., and Margaret Smith, Respondents, and Elizabeth A. Allen, Intervenor-Respondent, v. Edna D. LARSON, individually and as Executrix of the Estate of Rilla T. Stack, deceased, Appellant.

Supreme Court of Oregon, In Banc.

Argued before Department No. 2 and Submitted Dec. 5, 1962.

Reargued April 5, 1963.

Decided June 12, 1963.

Stewart M. Whipple, Portland, argued the cause for appellant. On the brief were Seitz, Easley & Whipple, Portland.

David H. Breuer, Portland, argued the cause for respondents. With him on the brief were W. C. Beers and Walter W. Yeager, Portland.

No appearance on behalf of intervenor-respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN, and DENECKE, JJ.

ROSSMAN, Justice.

This is an appeal by Edna D. Larson, individually and as executrix of the estate of Rilla T. Stack, a deceased widow, from a decree of the circuit court which ruled that a document in the form of a will which Mrs. Stack executed August 3, 1955, was 'a nullity and of no force or effect whatsoever.' The will named Miss Larson residuary legatee and nominated her as executrix. The execution of the document was succeeded on July 22, 1957, June 12, 1958, August 8, 1958, December 5, 1958, and November 3, 1959, by the execution of five instruments in the form of codicils. Miss Larson, the appellant, is the proponent of probate of the will and the five codicils. The contestants, Thomas W. Cline, Sr., and Margaret Smith, are two cousins of the deceased. They are now the respondents. The challenged decree declared the codicils as well as the will nullities and vacated the order which had appointed Miss Larson executrix. The intervenor-contestant, Elizabeth A. Allen, who is also a cousin of the deceased, is not a participant in this appeal.

The bases of the challenged decree are the facts that (1) Miss Larson was the secretary of Edward R. Robnett, the attorney whom Mrs. Stack employed to prepare the will, (2) Miss Larson was a friend of Mrs. Stack, (3) Miss Larson typed the will and was consulted by Mrs. Stack concerning its residuary clause, and (4) Miss Larson is the residuary legatee of the will.

Mrs. Stack died November 10, 1960, at the age of 88 years. The petition to revoke makes no claim that Mrs. Stack lacked testamentary capacity when she executed the will and the codicils; however, in detailing the facts, we will frequently mention her mental condition. The petition states its charge as follows:

'The said Edward R. Robnett, together with his employee, the said Edna D. Larson, by use of undue influence, dominance and control over the said Rilla T. Stack caused the said Rilla T. Stack to execute as her pretended Last Will and Testament that certain document heretofore referred to as bearing the date of August 3, 1955, and through their respective dominance and undue influence over the said Rilla T. Stack so dominated and controlled all her thoughts, actions and moves that at the time of the execution of said pretended Will and the said pretended codicils thereto, the said documents did not contain the desires and wishes of the said Rilla T. Stack and was not in fact her act or will * * *.'

By reverting to the dates that we have mentioned, it will be noticed that Mrs. Stack's death occurred five years and three months after she had executed the purported will and one year after she had signed the last of the five codicils. The inventory and appraisal of the estate showed a value of $64,635.59. From the time that the deceased had reached her 16th birthday she had been a school teacher. She retired from that vocation before she reached her 50th birthday. She was thrifty and managed her estate capably. She spent but little upon herself. She had no children. When she executed the document that purports to be her will she lived alone in a home which she owned. She had many friends and in the last two years of her life lived for several months in the home of one of them.

One Ralph W. Robnett, an attorney now deceased, was the father of Edward R. Robnett whom we have mentioned. Mrs. Stack went to Ralph W. Robnett for whatever legal services she needed, and the record indicates that while the son (Edward) was still in high school his father and mother made him acquainted with Mrs. Stack. When Edward R. Robnett was admitted to the bar in 1944 he became associated with his father in the practice. In 1950 the father died, and thereupon the son succeeded to his office. From that time Mrs. Stack went to him for the legal services she needed. She did not manifest toward him the deference that some clients display toward their attorneys. She had known his father as 'Mr. Robnett' and upon becoming acquainted with the son as a high school boy called him 'Ed.' She continued to do so when he was admitted to the bar. She frequently directed him to bring a paper to her or, in terms suitable for giving orders to a servant, acquainted him with her wants.

Miss Larson, the proponent, had become the secretary of Ralph W. Robnett in 1927 and upon the latter's death in 1950 entered Edward's employ. Some years after she began her employment for the father she became acquainted with Mrs. Stack and, as time went on, the acquaintanceship developed into a friendship. The two women never saw each other in any place other than Mr. Robnett's office except in the last months of Mrs. Stack's life when Miss Larson visited her in a rest home where iilness confined her. The two never visited one another in their homes nor did they attend together social, church or other functions. They, however, spoke to one another on the telephone frequently, and the record contains an occasional friendly letter that Mrs. Stack wrote to Miss Larson. Each was a member of the WCTU and each was a church member. Their religious denominations were not the same. Something served as a bond and united into friendship these two people. Possibly, as the accumulating years settled upon Mrs. Stack and segregated her more and more from the ordinary channels of social activity, she viewed with increased endearment individuals such as Miss Larson who continued to display an interest in her. Society has a caste system which groups people into social units according to age. Not only did old age segregate Mrs. Stack from the younger groups, but in addition her hearing and eyesight were beginning to fail. Increasing disabilities can subject their victim to the curse of austerity unless he can develop a compensating activity.

In her later years Mrs. Stack gave sums such as $500 and $1,000 to friends whom she especially liked. She also made loans upon favorable terms to persons whom she wished to help. Anticipation of a glow of appreciation by the recipients of her generous gifts and their continued interest in her may have prompted to some extent her bountiful acts. She may have distributed a part of her estate in her lifetime rather than in her will, not alone on account of the virtue that inheres in good deeds but also because it brought the recipients closer to her as friends. She liked people and had an engaging personality. Her gifts were not to those who had an ample purse but to people who could use an extra dollar and in whom she found qualities that she liked.

Mrs. Stack entered the office of Mr. Robnett July 1, 1954, and handed him $1,000 in cash as a gift, and a like sum to Miss Larson. No one intimates that either recipient had sought the gift. At various times Mrs. Stack made similar gifts to others.

We have mentioned the fact that some years prior to her death Mrs. Stack's hearing began to fail and her eyesight began to dim. A year or more before her death some who wished to speak to her resorted to shouting. A deaf person dislikes the shouted voice and all other efforts that call attention to his impaired hearing. Miss Larson could make Mrs. Stack hear her without shouting. Naturally, a person of that kind is acceptable company for the person whose social intercourse is restricted by deafness.

Until the last two or three years of her life Mrs. Stack came to the Robnett office as frequently as once in a week or two. Sometimes her visits were purely social. At those times she would visit for a few minutes with Mr. Robnett or Miss Larson. She might then leave with Miss Larson a parcel or two while she went to stores and performed shopping. Sometimes she borrowed from Miss Larson her streetcar pass so that she could visit a friend who was confined in a hospital.

Witnesses, even those called by the contestants, described Mrs. Stack as a determined woman who was strong willed and difficult to persuade. She was of a domineering type and knew what she wanted. Thomas Cline, a contestant, testified that Mrs. Stack 'wanted her own way.' His son, a clergyman, who was a principal witness for the contestants, referring to Mrs. Stack, testified:

'She was very determined. * * * She was set in her ways, whether those ways were right or wrong. * * * I think the characteristics of determinedness would characterize her all of her life. * * * She was definitely determined, even to the point of stubbornness. * * *'

Mrs. Ruth Campbell, who was reared by Mrs. Stack's mother as a foster daughter and who, therefore, had known Mrs. Stack over an extended period of time, testified:

'Q Was she independent in her ways?

'A Oh, yes; very definitely so.

* * *

* * *

'Q Was she the type of person that you could tell what to put in her will?

'A No, definitely; I wouldn't believe that.

'The Court; I didn't hear you; I am sorry.

'A No. I feel positive that she wouldn't.'

Antoinette Wagner, an employee of a real estate office with which Mrs. Stack had had many business relationships, when asked whether Mrs. Stack had 'a mind of her own,' replied:

'I don't think anybody could stop her when she wanted to do something or didn't want to do something.

'Q Was ...