Harritt's Estate, In re

• Decision Date: 15 May 1957
• Citation: 311 P.2d 450,210 Or. 354
• Parties: In the Matter of the ESTATE of Jessie Aaltje HARRITT, Deceased. Karl Wright HARRITT, Appellant, v. William J. LINFOOT, as Executor of the above entitled estate, Edith Bynon Low, Estella M. Bynon and Berna Ames, Respondents.
• Court: Oregon Supreme Court

Page 450

311 P.2d 450

210 Or. 354

In the Matter of the ESTATE of Jessie Aaltje HARRITT, Deceased.

Karl Wright HARRITT, Appellant, v. William J. LINFOOT, as Executor of the above entitled

estate, Edith Bynon Low, Estella M. Bynon and

Berna Ames, Respondents.

Supreme Court of Oregon.

Argued Feb. 28, 1957.

Decided May 15, 1957.

Joseph P. Meier, Salem, argued the cause and filed a brief for appellant.

Samuel F. Speerstra, Salem, argued the cause for respondents. On the brief were Rhoten, Rhoten & Speerstra, Salem.

Before PERRY, C. J., and ROSSMAN, BRAND and KESTER, JJ.

BRAND, Justice.

In this contest Karl Wright Harritt, brother and sole heir at law, seeks to invalidate the will of Jessie Aaltje Harritt on the grounds of lack of testamentary capacity and undue influence alleged to have been exerted by Edith Bynon Low, with the assistance of Estella M. Bynon, beneficiaries under the will. Contestant appeals from a decree of the circuit court dismissing the contest, and admitting the will to probate in solemn form.

Jessie Aaltje Harritt died in Salem on 23 July 1953 at the age of 66 years. She left a will dated 24 June 1953, duly executed in the presence of Thomas A. Pickett and Lilajean Farris, the attesting witnesses. William J. Linfoot, decedent's attorney, was named executor. The beneficiaries named in the will were Estella M. Bynon, who received certain property in Polk County owned by decedent, and an equal share of the residue; Berna Ames and Karl Wright Harritt, each of whom received a bequest of $1,000; and Edith Bynon Low, who shared equally in the residue with Estella M. Bynon. The will was admitted to probate in common form on 5 August 1953, and William J. Linfoot was appointed executor. On 25 January 1954 contestant filed his petition contesting the will for probate, alleging that on or about 24 June 1953 decedent was not of sound and disposing mind and was not competent to make a last will and testament. He further alleged, in part, as follows:

'That for a long period of time prior to said dates, said decedent was addicted to the use of alcoholic liquor and was a chronic user thereof; that such habitual use of alcoholic liquor continued until said decedent was on the point of death and left sick and unsound in mind and body requiring hospitalization and medical attention; that on or about the 21st day of March, 1953, your petitioner caused said decedent to be admitted to a private sanitarium for the purpose of curing said decedent from such addiction to the use of alcoholic liquor; that on or about the 28th day of March, 1953, defendants, Edith Bynon Low and Estella M. Bynon, caused said decedent to be removed from such sanitarium to said defendants' residence in Salem, Oregon; that at such time decedent was an invalid and unable to procure alcoholic liquor; that defendants, Edith Bynon Low and Estella M. Bynon, induced decedent to leave said sanitarium and to make such move by promises to keep said decedent supplied with alcoholic liquor; that such movement was made without the knowledge of the persons in charge of such sanitarium or any of said decedent's family; that defendants, Edith Bynon Low and Estella M. Bynon, kept said decedent well supplied with alcoholic liquor from said date of March 28, 1953, until the aforesaid date of decedent's death in their said residence for the purpose of inducing decedent to execute said will; that during such period of time from March 28, 1953, to the date of decedent's death, said decedent was enslaved by her aforesaid addiction and was rendered completely pliable to the will of said defendants, Edith Bynon Low and Estella M. Bynon, by their promises to supply decedent with alcoholic liquor, by their performance of such promises and by their threats to cease performance of such promises; that on the 24th day of June, 1953, said decedent being so pliable to the will of said defendants, being fearful lest her source of supply of alcoholic liquor be severed and being thoroughly cowed and intimidated by said defendants, Edith Bynon Low and Estella M. Bynon, was induced and influenced by said defendants to sign said document dated June 24, 1953, thereby substituting the will and testamentary wishes of defendants, Edith Bynon Low and Estella M. Bynon for her own; and that said defendants, Edith Bynon Low and Estella M. Bynon, were present at the time said decedent signed said document dated June 24, 1953, and were active in the execution thereof by gathering the witnesses to said document and by urging and persuading said decedent to sign said document dated June 24, 1953.'

By reason thereof it was alleged that the will dated 24 June 1953 was not the last will and testament of the decedent, ought not be admitted to probate, and that decedent died intestate, and relief was prayed for accordingly. Proponent's answer was a general denial.

Decedent was a spinster, employed until her retirement in October, 1952, by the State of Oregon. During her earlier years she resided in Salem in a house on 17th Street with her mother, and after May, 1941 with Miss Berna Ames, who came as a companion to her mother. When the mother was committed to the state hospital in June, 1947, decedent moved to a cabin on her Polk County property, and Miss Ames moved to Washington. After decedent retired she became ill and was taken to a hospital, one of four trips she thereafter made, and from there she was taken to the Boice nursing home, where she remained from 21 March to 28 March 1953. When she was removed from the nursing home she was taken to the Bynon home by Mrs. Low, and from there to her Polk County property by Miss Ames, who had returned in April to care for decedent. She remained with Miss Ames, either at the Polk County place, or in a house in Salem, most of the time from Miss Ames' return until 20 July. Decedent made further trips to the hospital, and finally was taken to the Bynon home about a week or ten days before the will was signed, and where she spent the remaining days of her life.

The burden of proof is on the proponent of a will to prove the testamentary capacity of the testator. In re Carr's Will, 121 Or. 574, 256 P. 390; In re Linville's Estate, 137 Or. 145, 300 P. 505; In re Bond's Estate, 172 Or. 509, 143 P.2d 244; In re Southman's Estate, 178 Or. 462, 168 P.2d 572; In re Hill's Estate, 198 Or. 307, 256 P.2d 735. A testator possesses sufficient testamentary capacity when he understands the business in which he is engaged, has knowledge of his property, and how he wishes to dispose of it among those entitled to his bounty, notwithstanding his old age, sickness, debility of body or extreme distress. In re Diggens' Estate, 76 Or. 341, 149 P. 73; In re Sturtevant's Estate, 92 Or. 269, 178 P. 192, 180 P. 595; In re Scott's Estate, 191 Or. 90, 228 P.2d 417; In re Buren's Will, 47 Or. 307, 83 P. 530; In re Knutson's Will, 149 Or. 467, 41 P.2d 793.

In determining the capacity of the testator at the time of making the will great weight is given to the testimony of the subscribing witnesses who had the opportunity to observe the testator's mental condition and all the circumstances at the time of the execution of the will. In re Fredrick's Estate, 204 Or. 378, 282 P.2d 352; In re Beer's Estate, 190 Or. 15, 222 P.2d 1005; In re Carr's Will, 121 Or. 574, 256 P. 390. Both subscribing witnesses, Thomas A. Pickett and Lilajean Farris, testified that decedent was of sound and disposing mind. Mrs. Farris testified that decedent was nervous and physically ill and looked weak and tired, but that she was mentally well. In addition, there was the testimony of Dr. E. P. Greenwood, decedent's physician, who testified that at the times he saw her on 22 June and 29 June 1953 she seemed quite clear mentally, and that during that time he believed her mind was in such condition that she would know the natural objects of her bounty, what property she might own, and what she wanted to do with it, and that her mind was in such condition that she could decide these things for herself. Contestant produced nothing to the contrary. The evidence shows that testatrix did have sufficient testamentary capacity to execute a will on 24 June 1953.

On the issue of undue influence, the burden of proof rests on the contestant. In re Southman's Estate, 178 Or. 462, 168 P.2d 572; In re Lobb's Will, 173 Or. 414, 145 P.2d 808; In re Knutson's Will, 149 Or. 467, 41 P.2d 793; In re Allen's Estate, 116 Or. 467, 241 P. 996; Rice v. Rice, 95 Or. 559, 188 P. 181. However, a confidential relationship between the decedent and the beneficiary coupled with the fact that the beneficiary took an active part in the execution of the will, or other suspicious circumstances may create a suspicion of undue influence, requiring the beneficiary to come forward with evidence sufficient to overcome the adverse inference. In re Perry's Estate, 181 Or. 332, 181 P.2d 783; In re Southman's Estate, 178 Or. 462, 168 P.2d 572; In re Lobb's Will, 173 Or. 414, 145 P.2d 808; In re Dale's Estate, 92 Or. 57, 179 P. 274. It is then necessary to examine the eight alleged suspicious circumstances to which contestant calls attention. The first two circumstances which he contends arouse suspicion are unnatural disposition and sudden change of testamentary intent; and the mention of a disliked brother in the will and the exclusion of a favorite niece theretofore considered by testatrix as a natural object of her bounty. Three wills prior to the one in question were introduced in evidence. A copy of the first dated 25 October 1940, was found in Mr. Bynon's papers on his death. It provided for a bequest of five dollars each to decedent's niece Marjorie Maerz (now Witzel) and decedent's nephew Delbert Harritt. Decedent's house on 17th Street was devised to Berna Ames; an acre of land in Polk County devised to F. S. B. (identified by Mrs. Low as Fred S. Bynon); and the residue was to be placed in trust, the interest and income...