Comegys' Estate, In re

• Jurisdiction: Oregon
• Parties: In the Matter of the ESTATE of Felix COMEGYS, Deceased. Ida C. DONEEN, Appellant, v. Walter J. CRAVEN as Executor of the Will being contested by these proceedings; James R. Mischel and Margery Anne Mischel, his wife; and Robert Gould and Clara Gould, his wife, Respondents.
• Citation: 284 P.2d 758,204 Or. 512
• Court: Oregon Supreme Court
• Decision Date: 25 May 1955

Page 758

284 P.2d 758

204 Or. 512

In the Matter of the ESTATE of Felix COMEGYS, Deceased.

Ida C. DONEEN, Appellant, v. Walter J. CRAVEN as Executor of the Will being contested by

these proceedings; James R. Mischel and Margery

Anne Mischel, his wife; and Robert Gould

and Clara Gould, his wife, Respondents.

Supreme Court of Oregon, Department 2.

Argued April 14, 1955.

Decided May 25, 1955.

Donald L. Burcham, Spokane, Wash., argued the cause for appellant. With him on the brief were Rhoten, Rhoten & Speerstra, Salem.

Asa L. Lewelling, Salem, argued the cause and filed a brief for respondents James R. Mischel and Margery Anne Mischel.

Before WARNER, C. J., and TOOZE, LUSK and BRAND, JJ.

LUSK, Justice.

This is a will contest based on alleged incompetency of the testator, undue influence, and an oral agreement on the part of the testator to die intestate so that the contestant, his sister and next of kin, would inherit from him. The last-mentioned ground has been abandoned. The court entered a decree sustaining the validity of the will, and the contestant has appealed.

The testator, Felix Comegys, a lifelong resident of Polk County, died on October 20, 1952, at the age of 82 years, leaving a last will and testament executed on January 14, 1952, by which he devised certain described real and personal property to Robert Gould and Clara Gould, his wife, and the entire residue of his estate to James R. Mischel and Margery Anne Mischel, his wife, and nominated Walter J. Craven, of Dallas, Oregon, as his executor. Margery Anne Mischel (referred to in the record as Anne) was a third or fourth cousin of the decedent. He left surviving him as his next of kin a sister, Ida C. Doneen, the contestant. The acts of undue influence relied on to invalidate the will are charged only against James R. Mischel (referred to in the record as Jim) and his wife, Anne. Their ages at the time of the testator's death were, respectively, 27 and 25 years. The estate was appraised at more than $80,000, the land devised to Robert and Clara Gould being of the value of $12,000. Much the largest part of the estate consisted of farm land in Polk County. Part of this land the testator inherited; part he acquired by purchase. His sister, Ida, owns an undivided interest in the inherited lands from which she receives an income of approximately $1,500 a year.

Felix never married. Ida married Edmund Joseph Doneen, and was living with him on a farm in Whitman County, Washington, at the time of his death in 1935. Ida then went to live with Felix in the farm home near Amity, Oregon. In February, 1951, Ida, then 83 years of age, fell and broke her hip and was confined to the hospital until July of that year when she was returned to Felix' home. At the suggestion of Ida, who was bedfast, Anne was employed to care for Ida and to do the housework. Anne, who was brought up on a farm some five or six miles distant from the Comegys place, was married at the time and living with her husband in Seattle, where he was studying photography. It was while she was on a visit to her parents' home that she was asked to take over the household duties and the care of Ida at the Comegys home. Her husband meanwhile went to New York to continue his photographic studies.

In August, 1951, Ida, being still bedfast, was removed by ambulance to the home of her son and daughter-in-law, Mr. and Mrs. Harold C. Doneen in Whitman County, Washington. There she has remained ever since and she is still an invalid.

At Felix' request Anne continued to live in his home, and, when Jim was about to rejoin his wife in Oregon in November, 1951, Felix suggested that they should both stay with him until they decided upon where they were going to live. This was agreed to and the three of them lived in the Comegys house until Felix' death. This was not Jim's first acquaintance with Felix. He had met him in 1947 before his marriage to Anne, upon her return from a month's automobile trip with Felix and Ida. After their marriage Jim visited the Comegys home several times with Anne before he went East, and in 1950 he and Anne and Felix and Ida went on a ten-day automobile trip together. Felix did not drive an automobile, and apparently one of his reasons for wishing to have the young people live with him was that they both could drive. They frequently acted as his chauffeurs, and in December, 1951, drove him to California where he visited friends.

Jim obtained temporary employment during December of 1951 with a photographic studio in McMinnville. This employment terminated about Christmas time. He discussed with Felix opportunities to get a job in Roseburg or to buy a studio in Salem, and, during the conversation, Felix, according to Jim's testimony, 'mentioned the fact to me that he needed somebody to stay and help him and take care of him, and so forth, and if we would stay there and do that for him he would help us.' Jim understood this to mean that Felix would lend them the money for the purchase of the studio.

On the morning of January 1 or 2, 1952, Anne told Jim that Felix wished to go to town to make his will, and, accordingly, on January 2 Jim drove Felix to Dallas where they went to the law office of Hayter & Shetterly. Mr. Philip Hayter, of that firm, is the son of the late Oscar Hayter, who practised law in Polk County for many years and was a distinguished member of the Bar of this state. Oscar Hayter had performed legal services for Felix. En route Felix told Jim what he wanted in his will. At the law office they found Mr. Shetterly, and, at the request of either Felix or Shetterly, Jim was invited into the latter's private office and was present during the discussion between Shetterly and Felix respecting the terms of the proposed will. He, however, took no part in the discussion. He had remained in the outer office until after the other two had entered Shetterly's private office when one of them asked him to come in. They were there for half or three quarters of an hour while Mr. Shetterly obtained the necessary information for the preparation of the will. Mr. Shetterly advised Felix that he would let him know when the will was ready to be signed. Felix and Jim returned home and no further allusion to the will was thereafter made by either of them to the other. Several days later a letter came for Felix notifying him that the will was ready for his signature, and on January 14 Jim again drove Felix to Dallas, Anne accompanying them this time for the reason that she and Jim had shopping to do. Jim went with Felix as far as the office of Hayter & Shetterly and left him there while he and Anne did their shopping. In some 20 or 30 minutes they returned, and, the will having been executed, they drove back home. From that time until his death Felix did not mention his will. He admonished Jim to say nothing about it, and Jim spoke of it to no one except his wife. Jim did not see the will until after Felix' death.

The will was witnessed by Philip Hayter and Kenneth E. Shetterly, both of whom testified on the trial to its due execution and to the mental competency of the testator.

The evidence to support the charge of incompetency is so woefully deficient that the claim has been all but abandoned in this court. We can find no convincing evidence of any impairment of the testator's mental faculties in January, 1952, when he executed his will, while there is an abundance of evidence coming from unimpeached witnesses from which the only conclusion to be drawn is that the man's mind was good and that he knew what property he owned and knew exactly what he was about both before, at the time of, and after the execution of the will. It is necessary to refer only to a few parts of the record. A witness for the proponents was Mearl Hammond, of McMinnville, an accountant, who, beginning with January, 1948, prepared Felix' income tax returns. Felix called at Hammond's office sometime between January 1 and January 15, 1952. He brought with him a statement of his receipts and disbursements for the previous year, made out in his own hand, to be used as the basis for the federal return. The statement was produced by Hammond and is in evidence. The items are correctly totaled. Again, when Felix went to Mr. Shetterly's office to have his will drawn, he took with him his real property tax receipts. While in the office he separated the receipts for taxes on the land he was devising to Robert and Clara Gould from the receipts covering the remaining land so that the attorney might thereby ascertain the description of the land to be devised to the Goulds and incorporated in the will. His sister, Ida, entrusted Felix with the responsibility of attending to her business affairs in connection with her interest in the Polk County land, which was farmed by tenants under a crop lease, and there is no complaint about the manner in which he discharged this duty. Orval Kurtz, a neighbor who lived on an adjoining farm and had known Felix and Ida for 30 years, was a witness for the contestant and testified to some forgetfulness and loss of interest in the operation of his farm on the part of Felix during the last two years of his life. But he admitted that in the spring of 1952 he was willing to make a loan to Felix of $6,000, and that he actually did lend him $2,400 in May, 1952, and that he guessed 'he knew what he was doing' and 'felt he was all right'. Felix banked with the Dallas City Bank, which was accustomed to lend him money when he asked for it without requiring any security. Lawrence J. Smith, vice president of the bank, testified that the last loan he made Felix was of $1,000 in July, 1952, and that in September of that year Felix came to the bank and had the insurance coverage on an automobile transferred to a new car which he had purchased. In short, the entire testimony shows that the testator was a man who, up to within a few weeks of his death, transacted all his own business, looked...