Fredricks' Estate, In re

• Decision Date: 13 April 1955
• Citation: 204 Or. 378,282 P.2d 352
• Parties: In the Matter of the ESTATE of Sophie FREDRICKS, Deceased. Joseph CLAUDER, Appellant, v. Marie E. MORSER, individually, and as executrix of the Last Will and Testament of Sophie Fredricks, deceased, Respondent.
• Court: Oregon Supreme Court

Page 352

282 P.2d 352

204 Or. 378

In the Matter of the ESTATE of Sophie FREDRICKS, Deceased.

Joseph CLAUDER, Appellant, v. Marie E. MORSER, individually, and as executrix of the Last

Will and Testament of Sophie Fredricks, deceased,

Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 16, 1955.

Decided April 13, 1955.

Joseph H. Page, Portland, argued the cause for appellant. With him on the briefs was Donald L. Alderton, Portland.

McDannell Brown, Portland, argued the cause and filed a brief for respondent.

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

WARNER, Chief Justice.

This proceeding contests the last will and testament of Sophie Fredricks. It was instituted by the decedent's brother, Joseph Clauder, against Marie E. Morser, the decedent's daughter and sole heir under her will executed June 3, 1952. From a decree sustaining the will, the brother appeals.

Sophie Fredricks was 79 years of age when she died in the Hazelwood Sanitarium in Portland, Oregon, on June 14, 1952, leaving an estate valued at approximately $5,000. She was a native of Austria and could neither read nor write, which explains why all the instruments hereinafter referred to were executed by using a cross as her mark. Mrs. Fredricks was a widow and lived alone in Portland. Through the medium of a friend, she carried on a correspondence with her daughter Marie in Wisconsin, from whom she had been separated for many years prior to Mrs. Morser's coming to Portland in 1949.

Speaking generally, the record is one of a continuing contest between the appellant uncle and his respondent niece for Mrs. Fredricks' testamentary favor. It began with Mrs. Morser's appearance in Oregon in 1949 and ended with Mrs. Fredricks' death in 1952. This contest does not constitute a happy chapter in the history of Mrs. Fredricks' family life. Both of the potential beneficiaries cloaked their purposes in conventional forms of filial or fraternal solicitude for this aged relative. However, even so glossed with the surface manifestations of devoted disinterestedness, it is not difficult for us to discover in the voluminous record of over 500 pages that each party to this contest was in reality urged on by the high hope and expectation of being the only one favored to receive Mrs. Fredricks' entire but modest estate. Each devoted much time and thought to insure that result.

As far back as 1948 the play for advantage began and was thereafter evidenced by a shifting of titles. Before taking up permanent residence in Portland in 1949, Mrs. Morser, in response to an urgent call, came to that city the latter part of October 1948 or in the early part of November for the purpose of caring for her parent, then ill. While on that visit, she was successful in inducing her mother to convey the homeplace to her. The precise circumstances leading to this transaction are unknown. We note, however, that the deed was executed shortly after Mrs. Morser's arrival, i. e., November 15, 1948, for a recited consideration of $10 and bears no revenue stamps. It was recorded the following day. Shortly after this transaction, Mrs. Morser returned to her home in Wisconsin.

Mrs. Morser and her husband later sold their place in Milwaukee, Wisconsin, and at Mrs. Fredricks' request came back to Portland in August 1949. There they took up residence with the decedent; but about November 25 of the same year, as a result of some friction with Mrs. Fredricks, the Morsers moved elsewhere in Portland. This ill feeling between the mother and daughter apparently was the result of a complaint initiated by Mrs. Morser charging her mother with insanity. However, before a hearing was had and before the Morsers left the Fredricks home, the insanity proceeding was dismissed on the daughter's motion; but traces of the bitterness it engendered were evident for long afterward.

It was after the Morsers' departure that the contest between uncle and niece for Mrs. Fredricks' testamentary favor really began in earnest. Mrs. Fredricks' property became the shuttlecock, passing first to one and then the other in the game they were waging for its control. It was then that Joseph Clauder 'moved in' and assumed the position of his sister's adviser and confidant. On December 14, 1949, only 20 days after the Morsers had moved, Clauder had his sister in the office of his attorneys where she executed a will leaving $1 to her daughter and the remainder of her estate to her brother. This is the will Clauder seeks to have probated in lieu of the contested will of June 3, 1952, which was admitted to probate on June 19, 1952. It is the claim of Clauder that his sister lacked testamentary capacity when she signed the will of June 3 and that if she executed the will at all at that time, it was by reason of and in response to the undue influence of Mrs. Morser.

Sometime after the Morsers left the Fredricks home, Mrs. Morser was induced to convey back to the decedent the property she had received by deed in November 1948. In February 1950, Mrs. Fredricks changed the beneficiary in her life insurance policy, making it payable to the contesting brother. Later, as a provision of the will of June 1952, the daughter was made beneficiary in place of Clauder.

During the latter part of October 1951, Mrs. Fredricks sold her home to a Mr. and Mrs. Ukolow under a contract of sale upon which a down payment of $1,500 was made. The deal was negotiated for her by the contestant while Mrs. Fredricks was in a rest home. At the time of signing the contract of sale, she also conveyed the legal title to the property to her brother and assigned to him the Ukolow contract, thus enabling him to convey the property to the Ukolows when they completed payments on the contract and, in the meantime, allowing him to collect and disburse all funds received. This was done pursuant to a short agreement of trust between Clauder and his sister under which the brother was bounden to pay her expenses from the proceeds of the sale and was to retain such balance as remained at the time of her death.

The next chapter in the struggle between niece and uncle began in February 1952, not long after Mrs. Morser learned of the sale of the property to the Ukolows and of the funds in the possession of Clauder. It was then that Mrs. Morser moved for the appointment of a guardian for her mother on the ground that she was mentally incompetent. In that proceeding in the circuit court for Multnomah county, Mrs. Morser was appointed by the probate department as guardian of her mother's person and McDannell Brown, Mrs. Morser's attorney, as guardian of the mother's estate. Just what transpired in the guardianship between its beginning in February 1952 and May 2, 1952, is not entirely clear, inasmuch as only two documents filed therein are made a part of the record here, i. e., the order and the account, hereinafter referred to. However, from the recitals in the court's order of May 2, we learn that shortly after the two guardianships were set up, Mrs. Fredricks moved the court for an order vacating those appointments. Hearings were had thereon in March 1952, which resulted in the order of May 2 dismissing the guardianship of Mrs. Fredricks' person but continuing the guardianship as to her estate on the ground that she was so infirm in body that she was unable to manage and care for her property. The order expressly found that Mrs. Fredricks was 'not mentally incompetent so as to require the appointment of a guardian of her person.'

In the same order the court accepted the resignation of Mr. Brown as the guardian of her estate and in lieu appointed Donald L. Alderton, an attorney retained by Clauder. It was Mr. Alderton who had drawn the instruments in connection with the Fredricks-Ukolow deal, above referred to, the order of the court in the guardianship matter and the account of Joseph Clauder, Trustee, to which we hearafter refer.

What were the negotiations, if any, which led to the withdrawal of Mr. Brown in the guardianship matter and the substitution on May 2 of Mr. Alderton is not revealed, nor is it shown why Clauder apparently voluntarily reconveyed to Mrs. Fredricks title to the homeplace and reassigned to her the Ukolow contract, all as of April 28, 1952, when under the trust agreement he had a valuable interest therein, maturing in his favor on her death. Nor do we know why Clauder felt bound to account at that time to the guardianship for the money he had received under the Ukolow contract, less the disbursements made therefrom. This account shows $687.39 'in the hands of Joseph Clauder, Trustee' and $195 'in Trust account of D. L. Alderton, attorney at law'--a total of $882.39 belonging to Mrs. Fredricks if the trust had no vitality. The account was signed and verified May 20, 1952, but not filed in the guardianship matter until July 3, 1952, approximately 20 days after Mrs. Fredricks' death and nearly two weeks after Mrs. Morser's appointment as executrix.

Here ends the documentary history of the seesaw struggle between Mrs. Fredricks' only child and Mrs. Fredricks' brother for dominion over her meager resources.

In summary of the events during the period before Mrs. Fredricks' death, it appears that although decedent's property passed out of her legal reach and control during most of that time, shortly before her demise she was reinvested with that which was properly hers; that she apparently was never in want by reason of the machinations of her relatives and enjoyed for her use and benefit the avails of such property as she had before the Morser-Clauder contest began. No charge is made that any funds or property belonging to Mrs. Fredricks had been dissipated or mismanaged by the party then in possession, except as to an item of $28 said by Clauder to have been received by Mrs. Morser from the sale of some of Mrs. Fredricks' furniture.

Moreover, during the same period Mrs. Fredricks' mentality had had...