In re Beer's Estate
Citation | 222 P.2d 1005,190 Or. 15 |
Parties | In re BEER'S ESTATE. WHITE et al. v. MORTON et al. |
Decision Date | 17 October 1950 |
Court | Supreme Court of Oregon |
James T. Chinnock, of Grants Pass, argued the cause and filed briefs for appellants.
George W Kellington, of Medford, argued the cause for respondents. On the brief was V. A. C. Ahlf of Grants Pass.
Before LUSK, C. J., and BRAND, BAILEY, HAY, LATOURETTE and WARNER JJ.
On February 26 1945, Oscar Beer, an uncle of the contestants and appellants Frank Grunow, Emma Grunow White and Fritz Grunow, died leaving a will wherein a nominal bequest of $1 was made to each said contestant. The remainder of his estate was devised and bequeathed to Archie Morton, his friend of more than twenty years. The will, so far as material herein, provided
The will was executed on the 27th day of June, 1944. After it was admitted to probate, the appellants instituted a proceeding attacking its validity on two grounds: (1) Lack of testamentary capacity, and (2) Undue influence. By stipulation the contest was transferred to the Circuit Court where, after hearing, a decree was entered directing that the aforesaid will of Beer's be admitted to probate as his last will and testament. From that decree, Beer's two nephews and his niece appeal to this court.
The first and most important question here is whether the testator had sufficient mental capacity on June 27, 1944, to make a will. Did he understand the transaction in which he was engaged? Did he know how he wanted to dispose of his property? Did he understand and appreciate the natural objects of his bounty?
Mr. Beer was 86 years old at the time of his death. His later years, beginning in 1943, were attended with illness and more or less continuous hospitalization. In the month of April, 1943, he was taken from his homestead situated in Del Norte County, California but near Takilma, Oregon. From that time until some time in August, 1943, he was a patient in two different hospitals at Crescent City, California. On September 30, 1943, the testator entered Josephine General Hospital at Grants Pass, Oregon, where he was under the care and supervision of Dr. C. J. Moser, a physician and surgeon of that city. There he remained until on or about October 16, 1943. Not long thereafter, he again entered the same hospital where Dr. Moser performed a prostatectomy. Mr. Beer left the hospital on January 18, 1944, going directly to the Stansfield Convalescent Home in Grants Pass, where he remained until March 21 of that year. From there he was transferred to the McCarter Convalescent Home in the same city, where he remained until his death there on February 26, 1945.
It is true, as urged by the contestants, that they, as Mr. Beer's next of kin, were the natural objects of his bounty within the usual definition of that term. In re Walther's Estate, 177 Or. 382, 397, 163 P.2d 285. However, the Beer's will cannot be characterized as unnatural merely because it preferred Archie Morton to them. Morton was his friend for more than twenty years. The record is eloquent that Morton was in every respect, as declared by the testator in his will, a 'good, kind friend' who had rendered valuable services during the period of their acquaintance and who loyally and promptly responded to the mutual pledge made during the earlier years of their friendship that in the event either of them became ill or needed the help of the other, the other would give such help.
The record is equally clear that the relations existing between the testator and the contestants were not particularly close, on occasions they were far from cordial and at times were even hostile. We will briefly refer to three separate incidents, each involving a different contestant. These incidents, in our opinion, could easily account for and explain the reason for the extinguishment of all feeling of obligation or sense of duty on the part of Mr. Beer toward the contestant particularly involved. At the time of the execution of the will, a suit was pending in the Superior Court of the State of Washington wherein the testator was plaintiff and the contestant, Frank Grunow, and his wife were defendants. This suit was for the recovery of $1,200 loaned by the testator to the defendants in 1942 and made upon their promise to secure the same by the execution of a mortgage on certain Seattle real property which they failed to do. Subsequent to testator's death, and on July 13, 1945, a decree was entered in the Washington suit granting all the relief prayed for by the testator and reciting that the conduct of the contestant, Frank Grunow, and his wife constituted a fraud upon Mr. Beer.
As to the contestant, Fritz Grunow, there is uncontradicted evidence that he and Mr. Beer were once engaged in a cattle venture which resulted in some disagreement, causing Beer to believe and assert to others that his nephew, Fritz, 'tried to beat him out of some money.' Fritz Grunow himself testified to a difference he had with his uncle over the making of an affidavit, which was followed by Mr. Beer's refusal to speak to him for a long time thereafter.
Emma Grunow White, the third contestant, had incurred the displeasure of the testator about a year before the making of his will when she petitioned for her appointment as Mr. Beer's guardian in the County Court of Josephine County. That petition was filed June 16, 1943, without Mr. Beer's knowledge or consent. We find in Mr. Beer's petition for Mrs. White's removal and the termination of that guardianship filed September 28, 1943, his statement that Mrs. White 'has never in the past been very solicitous of the welfare of your petitioner, and it is not his desire that she should come into the possession of any of the property belonging to him, either through guardianship, or an administration of the estate, after the decease of your petitioner.' It will be seen that the events referred to involve one or the other of each of the contestants. Each occurred shortly before or was subsisting at the time he made his will, except possibly his controversy with Fritz concerning which we have no dates. Moreover, before and particularly subsequent to the beginning of Mr. Beer's hospitalization in 1943, he freely and frequently expressed his displeasure and irritation growing out of the conduct of the contestants and was equally vocal in the indication of his fondness for Mr. Morton and his appreciation for the services rendered by that beneficiary both before and subsequent to his hospitalization. We are impressed that under all circumstances revealed by the record, the will lacks the unnatural quality contended by the contestants and is, on the other hand, a natural and logical expression of appreciation for the kindly any devoted services rendered by Mr. Morton to his old friend, Mr. Beer.
The contestants introduced the record of the California guardianship filed in the Superior Court of Del Norte County of that state on June 21, 1943. They also introduced the record of the Oregon guardianship filed in the County Court of Josephine County, Oregon, on June 16, 1943, wherein testator's niece, Mrs. White, was the petitioner. The record in the Oregon guardianship discloses that after notice and hearing, with personal appearance by Mr. Beer, the court on the 13th day of October, 1943, entered an order removing Mrs. White as Mr. Beer's guardian and declaring, among other things, that Mr. Beer was 'competent in all respects to transact all of his business affairs.' The California guardianship was apparently continuing at the time of the testator's death. It is the contention of counsel for contestants that the Oregon guardianship was in effect at the same time, although counsel fails to assign any reason why the order of October 13, 1943, should be treated as a nullity.
These guardianship proceedings are urged upon us as evidence of Mr. Beer's mental incapacity to make a will on June 27, 1944. Assuming that both the California and Oregon guardianships were in effect at that time, they are not conclusive as to the status of the testator's mental capacity on that date.
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