Day's Estate, In re

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: WARNER
• Citation: Day's Estate, In re, 257 P.2d 609, 198 Or. 518 (Or. 1953)
• Decision Date: 13 May 1953
• Parties: In re DAY'S ESTATE. DAY et al. v. HARKEY et al.

Page 609

257 P.2d 609

198 Or. 518

In re DAY'S ESTATE DAY et al. v. HARKEY et al.

Supreme Court of Oregon, En Banc.

Argued and Submitted March 18, 1953.

Decided May 13, 1953.

Glenn R. Jack and James O. Goodwin, of Oregon City, argued the cause for appellant. With them on the briefs was Robert Y. Thornton, of Salem.

George P. Winslow, of Tillamook, argued the cause and filed a brief for respondents.

WARNER, Justice.

This appeal is from a decree invalidating a document tendered as the last will and testament of Manillus R. Day, deceased, and declaring that the decedent died intestate.

The decedent's heirs and next of kin consist of cousins and second cousins, all of whom are parties to this proceeding. The 12 first cousins appear as contestants. Decedent's second cousins, 5 in number, were impleaded as defendants.

Leo Clyde Harkey, as the sole beneficiary under the will and as its nominated executor, is the proponent and alone prosecutes this appeal from the decree of the circuit court.

The contestants represent that Day was not only mentally incompetent to execute the instrument offered in probate but was unduly influenced to make the provisions he did in response to the persuasions of Harkey. The lower court found that a confidential relationship existed between Harkey and Day and that the challenged instrument was the product of this undue influence of the proponent.

The following is a composite statement of facts and circumstances either undisputed or sustained by a preponderance of the evidence:

Manillus Day at the time of his death on or about June 17, 1950, was 51 years of age. Prior thereto he had been in apparent robust health. He left an estate worth approximately $18,000. Day had never been married and for a good many years lived alone in a cabin on an 80-acre tract near Bay City in Tillamook county. He was highly temperamental, capable of violent anger and given to certain eccentricities. Although running water and electricity were easily obtainable, he lived without them and denied himself toilet facilities of any kind. Notwithstanding that the decedent did not attend social functions, he maintained a friendly accord with his immediate neighbors.

Day's mother died May 29, 1950, just 18 days prior to the execution of the will now being contested. Her death wrought a very disturbing influence in his life, particularly insofar as it cast upon him problems relating to the probate of her estate and through which he acquired a very substantial portion of his own estate. This in part reflects his antipathy for handling his own business affairs and his want of knowledge of the conventional ways of dispatching matters relating to the administration of estates.

Acting on the advice of Harkey, Day chose Warren A. McMinimee from one of two persons suggested by Harkey to act as attorney for him in his capacity as administrator c.t.a. of his mother's estate. Shortly before his death, he expressed to Harkey his satisfaction with that choice.

We find that only two days before he signed the will making Harkey his sole beneficiary, he further evidenced his confidence in McMinimee by his direction to that attorney to prepare a will for him to execute, wherein he proposed to give one half of his estate to Harry McGuen, a first cousin and one of the contestants herein, and one half to Bernice Wilkins, a longtime friend of his family, with token bequests to two other ladies, one being Mrs. Morrison, who lived just across the road from his cabin. His guns were to be given to Evans Platt. This was followed by a very significant event which took place about noon of the day he signed the will now in question. At that time he again called at McMinimee's offiee in Tillamook to advise him of a change in his previous planning to the exent of giving Mrs. Bessie Williams, the person who had cared for his mother in her last days, one half of what he received from his mother's estate. It was apparently his then intention to make a gift of this one half to Mrs. Williams as soon as the property of that estate was available for distribution and by way of rectifying a previous grievous error in his judgment concerning her.

Leo Harkey, the proponent, was an agent for the American Express Company in Tillamook and lived not far from Bay City. His home was about a quarter of a mile down the road from the Day cabin. Harkey had moved into that community about two and a half years before the decedent's death. Day and Harkey soon thereafter became friends, and we discover Day frequently assisting the Harkey family in many neighborly services by way of helping them to establish themselves in their new location.

The cardinal date in this matter is June 16, 1950. For what took place in Day's home on the evening of that day we are dependent entirely upon Harkey's testimony. A few days prior, Day had expressed himself to Harkey as greatly concerned about his failure to have made federal income tax returns for the four prior tax years. He seemed to believe that he was in 'an awful mess' as a result, with possible liability to penal action. Harkey attempted to reassure him that he was not in danger of being jailed and, at the worst, would probably have to pay only a cash penalty. Harkey promised Day that he would make further inquiry in his behalf from a deputy collector of internal revenue who was Harkey's friend.

Late in the afternoon of June 16, about 5:30 p. m., the appellant called at Day's home to inform him of what he had learned from his friend, the deputy collector, and to assuage further Day's fears concerning his tax situation. When he arrived, he found Day in a state of considerable agitation and concern over alleged rumors which the decedent said he had heard that day to the effect that he, Day, was a 'Peeping Tom.' Harkey represents Day as so greatly over-wrought and humiliated by these reports that he had determined to leave the community that night for parts unknown, but not before he had given Harkey everything he owned and which he then pressed upon him. According to Harkey, he spent about 20 or 25 minutes arguing with Day, trying to reassure him that the stories were of no consequence and to dissuade him not only against his proposal to leave the country but also against his offer to vest Harkey immediately with title to all his property. It resulted only in Day's insistence that an attorney be hired to draw a will in favor of Harkey.

We interpolate here to note that a half hour appears to us as a remarkably short space of time to minister to the anxieties of one as mentally confused and distressed as Harkey pictures Day to have been at that time, especially when we realize that Harkey had to divide his 20 or 25 minutes into explaining the income tax situation, discrediting the 'Peeping Tom' rumors and allaying Day's apprehensions concerning them, persuading Day to abandon his determination to leave forever the familiar environments in which he had dwelt for a lifetime, to say nothing about the time he would necessarily have expended in arguing against Day's insistence that he endow Harkey then and there with all his earthly possessions of a value proximating $18,000 and, in so doing, no doubt pointing out to him that Day had other relatives and friends who were better entitled to his bounty than he, Harkey. The speed with which these matters of major magnitude were resolved in terms of Day's importunities and contrary to Harkey's protestations gives rise to a grave doubt concerning the credibility of Harkey's testimony of what was actually said and done during that momentous and so short interveiw between Harkey and his deceased benefactor. However, as we know, Day apparently overcame Harkey's 'resistance'; and he finally harkened to his friend Day's directions and with equal and surprising speed moved immediately to translate them into a semblance of reality. His first act was to secure the services of an attorney to prepare a will in accordance with Day's directions.

During his meeting with Day, Harkey tells us that he was enjoined by the defendant to treat the stories concerning his alleged 'Peeping Tom' activities with confidence, as well as his plans to flee to parts unknown. We observe, however, that there is no evidence other than Harkey's that Day was in fact disturbed by these rumors.

It seems appropriate here to record that approximately 30 minutes before Harkey called upon Day, Day, on his way home from Tillamook, had stopped his car in front of the house of a nearby friend, neighbor and confidante of many years, Mrs. Morrison. She is the same person whom, two days before, he had instructed Mr. McMinimee to include as one of the beneficiaries in his will. She was then working in her garden, where he joined her. His mental attitude at that time is one of such striking contrast to what Harkey claims he discovered within the next half hour that we quote from Mrs. Morrison's testimony as follows:

'Q. Did you talk to him then about--I will put it this way: Did you have any discussion at that time about his business affairs being in good shape and so forth? A. Yes, he said he felt very much better, he felt he had things straightened out. The way he worded it, 'I feel much better about it.'

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'Q. And he seemed to express that everything was right with the world at that time? You had that feeling then? A. Yes, he seemed to be feeling much better.

'Q. Now did he go and get you some bean poles that afternoon? A. He got two. He couldn't find the others. He said he would get the others in the morning.

'Q. He would bring them over in the morning, is that right? A. That's what he said.'

Coincident with his departure from the Day cabin on that fatal night, we find Harkey enveloping all of his subsequent activities with a veil of secrecy and dedicating himself to their earliest possible accomplishment with the same tempo of expedition that seems to have characterized his conference with Day...