Hill's Estate, In re

• Decision Date: 29 April 1953
• Citation: 198 Or. 307,256 P.2d 735
• Parties: In re HILL'S ESTATE. HILL v. HENDERSON.
• Court: Oregon Supreme Court

Page 735

256 P.2d 735

198 Or. 307

In re HILL'S ESTATE HILL v. HENDERSON.

Supreme Court of Oregon.

Argued Feb. 4, 1953.

Decided April 29, 1953.

W. A. Wiest, of Independence, for appellant.

Elmer Barnhart, of Independence (Fred W. Calef, of Independence, on the brief), for respondent.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK and PERRY, JJ.

WARNER, Justice.

This is an appeal in a contest challenging the validity of the last will and testament of Verd Hill. Verda Frances Hill, the decedent's daughter, is the contestant and Constance J. Henderson, his niece, in her capacity as executrix is the proponent. From a decree dismissing the petition, the contestant appeals.

Verd Hill died on December 18, 1950, at the age of 74 years. He left an estate consisting of personal property in the amount of $33,572.49 and real property of the value of $53,740.

The decedent's first marriage was with Frances Helmick when he was about 40 years of age. In March 1918, Verda Hill, his only child, was born to this union. Not long after her birth, and prior to 1921, Frances Hill brought a suit for divorce in Linn county. This was bitterly contested and attended with considerable publicity. It resulted in a dismissal. Later, in 1921, a second suit was brought in Clackamas county by Frances Hill wherein no contest was made. A decree was entered in her favor incorporating the terms of a property settlement, and provision was made for the support and maintenance of their daughter.

In 1931 Verd Hill married Esther M. Hill, who is now his widow. It was not a happy marriage. This was, no doubt, due in part to his extremely penurious ways and fixed and unconventional habits of living. They made their home on farmlands adjoining the city of Independence from whence the decedent derived the greater part of his income by the raising of livestock and agricultural activities. No children were born to this marriage and, therefore, his widow Esther and his daughter Verda were his sole heirs at the time of his death.

After her parents were divorced, Verda Hill lived with her mother until the latter's death in 1938 and thereafter with various maternal relatives. This continued separation of Verda from her father and the bitterness engendered by the divorce suits were strong factors tending to alienate the interest and affections of each in the other. During all the years following 1921, Verda and the testator had few social contacts. Only once, when she was very small, was she ever in Verd Hill's home.

Constance Henderson, nee Cohrs, was born in 1919 in Spokane, Washington. She was the only child of Mrs. Garlin Cohrs, the favorite and only living sister of Verd Hill. When Constance was about three or four years old, she moved with her mother and father to Independence where they built a small house south of and adjoining the Hill residence. Here Constance resided for nearly 14 years, that is, from 1923 to 1937, the year her father died and the year she was graduated from the Independence high school. Financial adversity caused the loss of the Cohrs home and, after her father's death, Constance was moved to her Uncle Verd's home and her mother went to Portland to secure employment. Constance in a sense grew up on her uncle's farm. From her earliest day she acquired an interest in his work and apparently spent much time following him around as he did his chores, attended his livestock and gave attention to his haying. During the years 1937-1938 Constance continued to reside with the Hills while she attended the normal school in Monmouth nearby. In the summer of 1938 she joined her mother and worked in Portland. In September of that year her mother died, leaving her a practically penniless orphan. Thereafter, her uncle's home was where she spent most of her time when not in college or visiting with relatives of her father. This continued until her marriage in 1941.

After patient study and advance detailed preparation on his part, supplemented by further and independent study of a preliminary draft prepared by his own chosen counsel, Verd Hill on May 14, 1948, in the presence of disinterested witnesses, placed his signature upon the instrument which is now the subject of controversy. He not only executed it in the conventional manner but, with the caution and foresight which characterized many of his transactions, he added his name to every sheet of this nine-page instrument in the view of five subscribing witnesses specially invited by him for that purpose.

We shall not encumber the record with a haec verba exposition of the will's 25 separate articles but point only to those which are the agitating source of the disappointment of his daughter Verda and his widow Esther.

Testator's sole bequest to his daughter is found in Article 3. Under this article she receives only $1. By Article 14 he devises a life estate in his home place of nine acres to his wife, terminable upon her remarriage. After making relatively small gifts to relatives, $1,000 to the local Knights of Pythias Lodge and modest allotments for the upkeep of cemetery lots and monuments to relatives and a friend, the testator under Article 21 creates a trust from the rest, residue and remainder of his real and personal property for the benefit of his widow and other relatives. From the net income of this fund his trustees are directed to pay his wife Esther 'one fourth thereof in monthly installments * * * or the sum of $50.00 per month, whichever is greater'. These payments were made to begin on the death of the testator.

The provisions made for the testator's niece Constance are variously described by the contestant as constituting the 'lion's share', 'the largest portion of the estate' or 'the bulk of the estate' and prompt reference to Mrs. Henderson as the 'principal beneficiary'. These generalizations in our opinion, are extravagant and not warranted by the language of the document under review. After making the special provision above referred to for the widow, the will further provides that the remaining income from the trust shall be divided equally among Constance and decedent's nephews, Wendell H. Denlinger and Ellis J. Burch, with provision that upon the death or remarriage of Mrs. Hill, the real property of the trust shall be divided into three parcels as described therein, with a particular parcel to each of those three relatives. It also gives the niece and nephews named an undivided one third in the residue of the other property in the trust. There is nothing in the record to indicate that the parcel of real property allotted to Constance is disproportionate in value to the parcels set aside to her cousins, Wendell and Ellis, and certainly nothing to justify an appellation of 'principal beneficiary', unless we add to the other advantages conferred by the will upon Constance the fees which would accrue to her in her capacity as executrix. At the time the will was made, Constance was a resident of California, a circumstance rendering this additional benefit one of an uncertain value.

The fact that Constance was more generously endowed by the decedent than were the other feminine members of his family was, no doubt, a tempting excuse and a persuading impulse for the instant litigation--litigation in which the widow gives more than yeoman service to the pretensions of Verda and contributes most of the testimony upon which the contestant rests her case.

It is the claim of the contestant that the testator was mentally incompetent to make a valid testamentary disposition of his property on May 14, 1948, and that his then condition of mind was further inflamed by certain alleged insane delusions which he entertained at that time. Although not specifically stated, it is reasonable to infer that these were supposed to relate to his wife and daughter, the only two beneficiaries who express disappointment concerning the provisions made for them.

Verda Hill also asserts that her cousin Constance availed herself of her uncle's claimed mental infirmities and exercised an undue influence upon him at that time to her unjust enrichment.

The rules of law pertinently applicable to the questions raised by this appeal have been long crystallized. Our sole problem, therefore, is to test the facts as revealed by the record in terms of those controlling and well established canons.

Many a contestant's high hopes, destined to disappointment, spring from a carelessly bandied use of that phrase which refers to them as the 'natural objects of the testator's bounty.' Too many seem to garner therefrom a rule of law not present nor to be implied. It confers no inferential rights, nor indeed any rights, to take from one dying testate. It compels no duty upon the part of a testator to make any provision for those comprehended by its words. The phrase 'natural objects of [the testator's] bounty' is no more, no less, that a euphemistic way of defining what can be more simply said and with equal meaning, i. e., 'next of kin', In re Walther's Estate, 177 Or. 382, 397, 163 P.2d 285, 291, or as was said in Page v. Phelps, 108 Conn. 572, 143 A. 890, 893, those who 'would take in the absence of a will because they are the persons whom the law has so designated'. Moreover, a will is not unnatural because it excludes one's next of kin in preference to those who may have enjoyed a closer and perhaps an affectionate relationship with the testator. In re Walther's Estate, supra, 177 Or. at page 397, 163 P.2d at page 291; Allen v. Breding, 181 Or. 332, 343, 181 P.2d 783; In re Detsch's Estate (Detsch v. Detsch), 191 Or. 161, 170, 229 P.2d 264.

A will of the kind now under examination may on its face seem to do violence to the ordinary concepts of what is, in terms of family ties and decency, proper if not legally necessary. Because of the evident deep feeling which the Verd Hill will has engendered and with a mistaken belief that the decedent was legally bounden to deal more...