In re Burke's Estate

• Decision Date: 29 July 1913
• Citation: 134 P. 11,66 Or. 252
• Parties: In re BURKE'S ESTATE.
• Court: Oregon Supreme Court

134 P. 11

66 Or. 252

In re BURKE'S ESTATE.

Supreme Court of Oregon

July 29, 1913

Department 2.

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Proceedings for the probate of the will of William C. Burke, deceased. From a decree admitting the will to probate, entered by the circuit court on appeal from the probate court, the contestants appeal. Modified and remanded, with directions.

This is a contest over various wills, made by William C. Burke, and arises out of the following facts: On December 30, 1908 Burke made a will, bequeathing all his property to Louisa A Lehman, his stepdaughter. On March 9, 1909, he died, and on March 23d the legatee filed the will with the county clerk of Douglas county, without filing any petition for probate. On the 23d day of March, 1909, the evidence of the subscribing witnesses was taken and filed with the court, and the matter was permitted to remain in this condition, without any application for probate, until February 12, 1910, when Robert O. Lehman, another stepson, filed a petition alleging the fact of Burke's death, and stating that at the date thereof he had real property of the value of $3,000, and personal property and notes of the value of $4,500; that on April 29, 1885, he executed a will, devising all his property to Mary T. Lehman, Louisa Lehman, Emma C. McKinney, and Robert O. Lehman, naming his wife, Augusta Henrietta Burke as executrix; that A.F. Brown and George Barr were witnesses to the will, and that same was in the custody of Louisa Lehman; that said will was made by deceased upon the consideration that his wife, Augusta Burke, would make her will, devising to him the use of all her real and personal property during his life, the same, or the proceeds thereof to be divided equally between Mrs. Burke's six children after his death, William C. Burke to have all his wife's personal property; that in consideration of the promise of William C. Burke to so divide his property, she made a will disposing of her property in the manner hereinbefore stated which will bore date June 30, 1885, and is made a part of the petition; that Mrs. Burke died October 13, 1905. The petition prayed for probate of Burke's will made in 1885. An order was made directing Mrs. Lehman to produce the will of 1885; and, after being cited for contempt, she finally produced it. A petition was then filed, contesting the will of 1908, which set forth the will of 1885 as the last will and testament of Burke, and alleged that the will of 1908 was procured by fraud and undue influence; that deceased was not at the time of its execution of sound mind, was weakened by age and infirmity, so that he did not know what he was doing, and was incapable of making a will; that Louisa Lehman, the devisee thereunder, led deceased to believe that her brothers and sisters had mistreated him, and were trying to rob him, was his confidential adviser in all his business, and took advantage of his impaired mental condition and of her fiduciary relations with him to induce him to attempt to make the will of 1908. The petition further set forth the will of Mrs. Burke, made in 1885, and alleged that it was made in pursuance of an agreement upon the part of Mr. and Mrs. Burke to make mutual wills, each devising their property to the other, with remainder over to Mrs. Burke's children. The petition alleged performance by Mrs. Burke, and her death, and the acceptance by Mr. Burke of her property, and prayed that the later will be not admitted to probate, and for probate of the will of 1885. The county court found that the will of 1908 was the last will and testament...