Detsch's Estate, In re

• Decision Date: 14 March 1951
• Citation: 229 P.2d 264,191 Or. 161
• Parties: In re DETSCH'S ESTATE. DETSCH v. DETSCH.
• Court: Oregon Supreme Court

Page 264

229 P.2d 264

191 Or. 161

In re DETSCH'S ESTATE DETSCH v. DETSCH.

Supreme Court of Oregon.

March 14, 1951.

Alton John Bassett, of Portland, argued the cause and filed briefs for contestant-appellant.

O. C. Roehr, of Portland, argued the cause for respondent. With him on the brief was C. C. M. Peterson, of Portland.

Before BRAND, C. J., and HAY, ROSSMAN, WARNER and TOOZE, JJ.

WARNER, Justice.

This is a proceeding to contest the will of Arthur S. Detsch, deceased, instituted by his son, Norton Detsch, against Edna E. Detsch, the decedent's widow and executrix. From a decree sustaining the will, the contestant appeals.

Arthur S. Detsch was about fifty-seven years of age when he died in Seattle, Washington, on the 24th day of March, 1948. He left surviving him as his sole heirs at law his wife, Edna E. Detsch, and his adult son, Norton Detsch. Norton is a son by a previous marriage which terminated by divorce in 1927. Norton, who then was about three years old, was committed to the custody of his mother with whom he has lived in Portland, Oregon, all of his life. After the divorce in 1927, Norton saw his father only occasionally and usually at times when the decedent was in Portland on business errands or on infrequent visits to his father's home in Seattle. A friendly but not too close relationship existed between the father and son.

The decedent and his widow were married sometime in 1934. She is an educated woman of the same age as her husband who took an active part in his business. Seattle was decedent's home and principal place from whence he operated his business as a manufacturer's agent. From early years of modest beginning, the business grew by dint of decedent's industry, application and shrewdness to a point where he was able, in 1940, to establish and thereafter maintain a branch office in Portland.

In March, 1947, Mr. Detsch experienced a serious heart attack. From that time to the date of his death, he was under the more or less constant observation and care of his physicians and subjected to the urgent necessity of conserving his energies and avoiding overexertion.

While on one of his trips to Portland during that period, he executed his last will and testament on the 27th day of August, 1947, in the office of Keith A. Caldwell, a lawyer in that city who had long known Mr. Detsch as a friend and who had served him as attorney and a business adviser. The execution of the will was witnessed by Mr. Caldwell and his secretary.

This will left the sum of $500.00 to a Mrs. Parsons, who had for many years been the testator's faithful secretary, and the sum of $500.00 to his son, Norton. The entire residue of testator's estate was left to his wife, Edna. Norton was also a beneficiary under a policy of life insurance to the extent of $600.00.

After the testator's death, which resulted from his heart ailment, the will of August, 1947, was admitted to probate on the 29th day of March, 1948, in the circuit court for Multnomah county and the widow at that time was appointed executrix of her husband's estate. In September of that year, Norton Detsch petitioned that the will be declared invalid, null and void. He assigned two reasons therefor: (1) decedent's alleged mental incapacity resulting from the serious character of his last illness and which, Norton stated, impaired his normal mental faculties and functions; and (2) undue influence from the alleged coercion and artifices practiced by Edna Detsch. Upon the hearing of this contest, a decree was entered dismissing the petition of Norton Detsch and declaring the will of August 27, 1947, to be valid and subsisting, from which the contestant son appeals.

The contestant at the time of trial abandoned his claim that the testator was mentally incompetent. He now urges as a sole ground for setting the instrument aside that it was induced by the undue influence of testator's wife.

We have recently said, speaking through Mr. Justice Tooze in Trombly v. McKenney, 228 P.2d 417: 'The last will and testament of a deceased person is an instrument of such great solemnity that it will never be set aside unless the evidence is convincing that it should be.'

The burden of proving undue influence is usually upon the party who asserts it. Trombly v. McKenney, supra; Allen v. Breding, 181 Or. 332, 341, 181 P.2d 783; In re Lobb's Will, 173 Or. 414, 432, 145 P.2d 808; In re Rupert's Estate, 152 Or. 649, 677, 54 P.2d 274; In re Knutson's Will, 149 Or. 467, 486, 41 P.2d 793; In re Estate of Riggs, 120 Or. 38, 47, 241 P. 70, 250 P. 753. The existence of a confidential relation between testator and beneficiary, however, coupled with proof that the beneficiary participated actively in the preparation or execution of the will casts upon the beneficiary the burden of disproving undue influence. Trombly v. McKenney, supra; Allen v. Breding, supra. This burden never shifts. In re Southman's Estate, 178 Or. 462, 482, 168 P.2d 572; In re Brown's Estate, 165 Or. 575, 584, 108 P.2d 775.

Contestant's case for undue influence rests upon two propositions: first, that testator's wife, because of that relationship, may be presumed to have exercised such a meretricious influence upon her husband; and, second, that the wife was prompted by her knowledge of decedent's departure from the ways of marital rectitude to vindictively influence the generous provision in her behalf and as a species of involuntary atonement for the testator's alleged wrongdoing. Contestant refers to this as testator's 'buying his peace' on terms dictated by his wife. The first proposition is without legal merit. The second one fails for want of substance and proven fact.

There is no rule of law which holds or infers that a power or influence born of a confidential relation such as husband and wife has been ipso facto wrongly employed to compel a testator to make a provision in the other's favor contrary to decedent's free will and volition. In Turner's Will, 51 Or. 1, 8, 93 P. 461, 464, this court said: 'A mere confidential relation existing between the testator and a beneficiary under a will, or the opportunity of such beneficiary to exercise undue influence over the testator, is not enough to avoid a will.' In 68 C.J., Wills, 752, § 442, we find: 'The influence of a * * * spouse to make a will in [his or her] favor, in the absence of a showing that it was improperly exercised, does not vitiate the will, even though there may be proof that such a provision would not have been made but for such importunity. The mere fact that a wife guides or even dominates her husband, or has acquired an ascendancy over him, does not render his will made in her favor invalid.'

We know of no better statement of a wife's normal and proper influence than that so pertinently made by Mr. Chief Justice Campbell in Latham v. Udell, 38 Mich. 238, where he said: 'A faithful wife ought to have very great influence over her husband, and it is one of the necessary results of proper marriage relations. It would be monstrous to deny to a woman who is generally an important agent in building up domestic prosperity, the right to express her wishes concerning its disposal.'

The second proposition relied upon by the contestant is both socially cynical and legally specious. It is purely speculative in character and underwritten with postulates which challenge our credulity. Here we are presented with the astounding picture of a son who blows hot and cold in his characterization of his father. One moment we find him exclaiming that the will is unnatural because of the blood ties and close relations which he claims existed between him and his father. The next moment he reveals the anemic content of those bonds by unabashedly picturing his father to the court in the role of a romantic Don Juan. With the help of his mother he goes back to times long before Norton's birth or his father's marriage of Edna Detsch to construct a history of his deceased parent's alleged marital infidelities. Their testimony rests upon much hearsay and little factual substance but nevertheless presents his father as one who was unfaithful up to a time shortly before his death. We are told that his widow had knowledge of the father's latest departure from the highway of marital rectitude and because of this fact, we are urged to assume that Edna Detsch, with motives of revenge, vindictively availed herself of this information to coerce and intimidate her husband to write his will in her favor in the manner in which he did. To give such inference the character of a factual happening, the contestant in his argument calls to our attention the cynical aphorism that 'Hell hath no fury like a woman scorned,' as a sort of final proof of his false hypothesis that every woman upon discovery of her husband's meanderings is moved to avenge her injured pride by the...