In re Carlson's Estate

Citation153 Or. 327,56 P.2d 347
PartiesIn re CARLSON'S ESTATE. v. CARLSON et al. PETERSON, Swedish Vice Consul for Oregon, et al.
Decision Date14 April 1936
CourtSupreme Court of Oregon

Department 1.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Proceeding to contest the probate of the will of Carl A. Carlson deceased, by Eric E. Peterson, Swedish Vice Consul for the State of Oregon, and attorney in fact for Hilda Lisa Larson and others, and to probate another document as the will of decedent, opposed by Fred Carlson and others. From a decree holding that the document contested was not entitled to probate and that the other document was the last will of decedent and entitled to probate, Alex M. Green and other proponents of the first document appeal.

Affirmed.

See also, 40 P.2d 743, 149 Or. 314.

This is an appeal by the proponents of a will, signed in the city of Portland on April 7, 1932, by Carl A. Carlson, now deceased from a decree of the circuit court which holds that that document was not entitled to probate as his last will and testament; and which also holds that another will, signed by him August 18, 1932, in the city of Jonkoping, Sweden, was his last will, and was, therefore, entitled to probate. He died in Sweden January 4, 1933.

B. G Skulason, of Portland (Rolfe W. Skulason, of Portland, on the brief), for appellants.

Waldemar Seton and Gustav Anderson, both of Portland, for respondents.

ROSSMAN Justice.

The decedent, Carl A. Carlson, signed two wills in the last year of his life; one in Portland April 7, 1932, and the other in Jonkoping, Sweden, August 18, 1932. He died in the latter city January 4, 1933. The Oregon will was admitted to probate in the circuit court of Multnomah county in common form April 18, 1933. The Swedish will was tendered for probate in the same court May 10, 1934. At the conclusion of the proceeding now under review, that will was admitted to probate and the order previously made in behalf of the Oregon will was rescinded. This appeal presents the issues whether the decedent revoked the Portland will, and, if he did, whether the Swedish will is entitled to probate in this state. There are no charges of undue influence or of lack of testamentary capacity. The proponents of the will signed on April 7, 1932, are the beneficiaries of that instrument. The proponent of the will signed on August 18, 1932, is the Swedish vice consul as attorney in fact for its beneficiaries.

Carl A. Carlson, the individual with whose estate we are now concerned, was adjudged insane by the circuit court of Multnomah county on January 30, 1931, and was then committed to the Oregon State Hospital. The witnesses who testified in this will contest proceeding did not know from whence Carlson had come, nor how long he had been in this state before he was taken into custody. The certificate of the examining physician states that Carlson was born in Sweden, that his parents were also born there, that he was 55 years old, and was a widower without children. The witnesses who testified in this proceeding gave no testimony at variance with this information, and added virtually nothing to it. In February, 1931, Victor Carlson, a brother, whose home was in California, induced Dr. Axel M. Green, superintendent of Emanuel Hospital of Portland, to assume an interest in his brother Carl. As a result, the State Hospital, on March 2, 1931, released Carlson on parole, and March 10, 1931, Dr. Green was appointed his guardian. About this time Carlson was transferred to the Emanuel Hospital where he underwent a course of treatment by Dr. Leo Ricen. April 1, 1932, the State Hospital granted a full discharge to Carlson; it appearing that he had recovered his sanity. During the guardianship, Carlson had consulted David E. Lofgren, the guardian's attorney, on several occasions concerning the making of a will. April 7, 1932, he again spoke to Mr. Lofgren upon that subject, stating that he would like to include in his will bequests for both Dr. Green and Mr. Lofgren. The latter informed him that under those circumstances he could not write the will, and Carlson then repaired to the office of Mr. J. J. Crossley, another attorney. Here the will of April 7, 1932, was prepared and signed. It included a bequest of $2,000 for Dr. Green and of $1,000 for Mr. Lofgren. One-half of the residue of the estate was given to Victor Carlson, and the other half to Emanuel Hospital. After Carlson had signed the will, he took it, and also the carbon copy which Mr. Crossley's stenographer had prepared for their office files, and then departed. The will was never seen again. Carlson later called upon Mr. Lofgren, informing him of what he had done, and a few days later told Dr. Green that he had signed a will containing a bequest of $2,000 in his favor. An explanation is made that the $2,000 bequest to Dr. Green and the $1,000 bequest to Mr. Lofgren were intended as compensation for the services which these two men had rendered during the period of the guardianship. We notice, however, that the guardian's reports show disbursements made to these two men during the guardianship, and that the guardian's final report which was prepared by Mr. Lofgren and filed by the guardian April 11, 1932, states: "The compensation of the guardian and his attorney have been settled with the ward." We also notice that on May 15, 1931, the circuit court signed an order allowing Lofgren $200 as additional compensation for services which he had rendered the guardian, and Dr. Green $100 additional compensation. Shortly after the will was signed, Carlson made a further payment of $500 to Lofgren for his services.

The inventory which the guardian filed showed that Carlson possessed an estate consisting of $5,195.09 cash, and securities of the value of $12,500. All agree that when Carlson was committed to the Oregon State Hospital he had no property of any kind in Oregon. His cash was on deposit in Chicago banks, and his bonds were in the custody of a Chicago trust company. After the Oregon will had been admitted to probate in common form, these assets were brought to Portland.

About ten days after the will was signed, Carlson left Portland for Sweden. August 18, 1932, he signed the Swedish will. This left his entire estate to two women whose relationship to him is not disclosed by the evidence. About five months later, that is, on January 4, 1933, he died. At the time of his death he had no property whatever in the state of Oregon, and, apparently, all of the securities listed in the guardian's inventory were still in the possession of the Chicago bank.

Mr. Lofgren testified that after Carlson's death, "I wrote to the foreign department or to the American minister or consul, and asked them to check up about the estate and find whether there was a will." He received a reply that Carlson had made a new will in Sweden, and that no trace could be found of the will signed in Oregon. Additional searches failed to locate the Oregon will. For the purposes of its probate the proponents of that will obtained a copy through the transcribed stenographic notes. The beneficiaries of the Swedish will proceeded with its probate in that country. A certified copy of that will was presented to the circuit court of this state, together with certificates signed by the judge and the clerk of the Swedish court to which it was presented for probate. These certificates state that the will "was proven in said court by the two witnesses thereunto attached, who both testified that the testator declared the same to be his last will and testament in their presence and they did then and there at his request, in his presence and in the presence of each other subscribe their names as witnesses thereto. ***" The Swedish will makes no mention of the Oregon will. The above, we believe, is a fair résumé of the material facts.

It will be observed that when the Oregon will was last seen it was in Carlson's possession, and that the searches which have been made for it since Carlson's death have failed to locate it. From In re Miller's Will, 49 Or. 452, 90 P. 1002, 1004, 124 Am.St.Rep. 1051, 14 Ann.Cas. 277, we quote: "If, when last seen, the will is shown to have been in the possession of the testatrix, and cannot be found, it must be presumed, in the absence of other evidence, that she destroyed it."

From In re McCoy's Will, 49 Or. 579, 90 P. 1105, 1106, we quote: "It must, we think, be taken for granted, therefore, that the will when last seen was in the custody of the testator, and since it could not be found after his death a legal presumption is raised that it was destroyed by him with the intention of revoking it, and the burden of proof is on the proponent to overcome this...

To continue reading

Request your trial
15 cases
  • Hull v. Cartin, 6706
    • United States
    • Idaho Supreme Court
    • July 27, 1940
    ... ... (68 ... Corpus Juris, "Wills," p. 992, par. 759; 28 Ruling ... Case Law, "Wills," p. 384, par. 388; In re ... Carlson's Estate, 153 Ore. 327, 56 P.2d 347; In ... re LeSure's Estate, 21 Cal.App. (2d) 73, 68 P.2d ... 313; In re Colbert's Estate, 31 Mont. 461, 78 P. 971, 80 ... ...
  • In re Goldsberry Estate
    • United States
    • Utah Supreme Court
    • July 29, 1938
  • Harris v. Jourdan
    • United States
    • Oregon Court of Appeals
    • March 19, 2008
    ...disprove that the August 2003 will was itself the product of undue influence. For that proposition, Harris relies on In re Carlson's Estate, 153 Or. 327, 56 P.2d 347 (1936). In that case, the decedent, Carlson, signed two wills in the last year of his life. The first was signed in Oregon an......
  • Coleman's Will, In re
    • United States
    • New Jersey Superior Court — Appellate Division
    • October 21, 1953
    ...Will, 178 N.C. 540, 101 S.E. 107 (Sup.Ct.1919); Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336 (Sup.Ct.1928); In re Carlson's Estate, 153 Or. 327, 56 P.2d 347 (Sup.Ct.1936); In re Knecht's Estate, 341 Pa. 292, 19 A.2d 111 (Sup.Ct.1941); Moore v. Stark, 118 Tex. 565, 17 S.W.2d 1037, 21 S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT