In re Carlson's Estate

• Decision Date: 25 May 1937
• Citation: 156 Or. 597,68 P.2d 119
• Parties: In re CARLSON'S ESTATE. v. PETERSON et al. GREEN
• Court: Oregon Supreme Court

68 P.2d 119

156 Or. 597

In re CARLSON'S ESTATE.

GREEN v. PETERSON et al.

Supreme Court of Oregon

May 25, 1937

Department No. 1.

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

Proceeding in the Matter of the estate of Carl A. Carlson, deceased, on the settlement of the final account of Axel M. Green, who was appointed executor of what purported to be the last will and testament of Carl A. Carlson, deceased, wherein Eric E Peterson, administrator with the will annexed of the estate of Carl A. Carlson, deceased, and others, filed objections to the account. From an order settling his final account, Axel M. Green, executor, appeals.

Affirmed.

B. G. Skulason and David E. Lofgren, both of Portland (Skulason & Skulason, of Portland, on the brief) for appellant.

Gustav Anderson, of Portland (Waldemar Seton, of Portland, on the brief), for respondent.

ROSSMAN Justice.

The sole question presented by this appeal is whether the circuit court of Multnomah county, probate department, was justified in reducing appellant's credits in his final account to the extent of $832.10, and also in reducing the amount of claims approved by him to the extent of $559.04. Appellant on April 18, 1933, was appointed executor of an instrument dated April 7, 1932, which he averred was the last will and testament of Carl A. Carlson, deceased. As a matter of fact, Carlson had revoked that will a few months prior to his death. When the circuit court discovered the fact of revocation, it discharged the appellant and directed him to file an accounting. A reading of In re Carlson's Estate, 149 Or. 314, 40 P.2d 743, and In re Carlson's Estate, 153 Or. 327, 56 P.2d 347, is essential to an understanding of the controversy before us.

April 7, 1932, the deceased executed a will which, after bequeathing $2,000 to Dr. Axel M. Green, the appellant, and $1,000 to David E. Lofgren, gave one-half of the residue of his estate to Victor Carlson, a brother, who resided in Berkeley, Calif., and the other half to Emmanuel Hospital of Portland of which the appellant is superintendent. After executing the will, Carlson took possession of it and also insisted upon and received possession of the carbon copy which the draftsman had prepared for his files. Neither instrument was ever seen again so far as the record discloses, although a search was later made for both. Shortly after the execution of the will Carlson left for his native Sweden, never to return to America. In the early part of 1933 Victor Carlson sent a letter to the appellant, stating that his brother had died in Sweden, leaving a will executed in that country subsequent to the execution of the Oregon will. Later he came to Portland and, after conferring with the appellant and Mr. Lofgren, expressed a desire that the Oregon will be probated. An investigation was then instituted in Sweden which confirmed the information which Victor already had and which showed that the Swedish will had been admitted to probate in that country. The deceased's estate in Sweden was larger than his estate in America. Since it is intimated that the report indicated that the execution of the Swedish will was irregular, we now quote from Mr. Lofgren's testimony wherein he read into the record the translated report of his investigator: "This is what I got from the party that made the investigation in Sweden: 'Undersigned, farmer, August Emil Swanson, Reaby Broljimark, 63 years old, and farmer Carl Edward Johansson, Reaby, Broljimark, 54 years old, who witnessed that a building contractor Carl August Carlson, in Jonkoping, the 18th day of August, 1932, executed a testament. We will herewith undersign the obligation and certify the following concerning the surrounding circumstances: application of witnessing; at an occasion in the month of August, 1932, the day we do not recall with certainty, came building contractor, Carl August Carlson, traveling out to us in Reaby and asked us to witness his name under one by him, the 18th day of August, 1932, executed a testament which he had with him written and signed. We were present at the same time in the home of the undersigned Johansson's residence in Reaby at the time the attestation was made. Carlson declared that he had written his name under the testament, and that it was his last will and testament. The will was not read, but we both read the same. Carlson, whom we knew since 1928, was, at the occasion, of full and sound mind and acted with free will. Jonkoping, 21st of April, 1933.' The instrument was deposited in the court room in Jonkoping on the 24th of April, 1933, when the testament was proven, and a hearing was held with two witnesses."

Appellant's brief intimates, without directly charging, that Carlson did not execute his will in the presence of the witnesses and that the latter did not sign in his presence. It will be observed from the above report obtained and produced by Lofgren that the witnesses declared that they were present "at the time the attestation was made." Pope's Legal Definitions defines the word "attestation" as follows: "The act of witnessing an instrument in writing, at the request of the party making the same, and subscribing it as a witness. *** The act of witnessing the actual execution of an instrument and subscribing the name of the witness in testimony of the fact." From the above, we are justified in believing that the instrument was signed in the presence of the two witnesses who thereupon subscribed their names in his presence. At any rate, whether Carlson signed in the presence of the witnesses or not, he nevertheless proclaimed to the witnesses that the signature to the instrument was his own. There is no competent evidence in the record concerning the law of Sweden which indicates that the above-described execution of the will was irregular. As a matter of fact, the will was admitted to probate in Sweden, and none of those who are attacking it in this state have instituted a contest of it in that country.

It is contended that under the laws of Sweden a will which bequeaths to an heir less than the sum which he would otherwise take must be served upon him at the time it is offered for probate, and it is intimated that such procedure was not followed in the instant case. The testimony concerning this purported provision of Swedish law is of very doubtful competency. But those who attacked the Swedish will in the probate department are not heirs or relatives of the deceased, and they admit that before the day of the contest the beneficiaries of the Swedish will and all of the deceased's heirs effected an understanding satisfactory to all. In fact, they admit that Victor Carlson withdrew his request that the Swedish will be contested. All agree that under those circumstances the Swedish law entitled the will to probate.

A finding is clearly warranted that the Swedish will was properly executed, that it is a valid instrument, and has been so recognized by the Swedish courts.

Notwithstanding the circumstances above mentioned, the Oregon will was tendered for probate in common form. As already stated neither it nor its carbon copy could be located, but the stenographer's notes were transcribed and in this manner a copy was obtained. The petition offering it for probate, which was signed by the appellant, stated: "The deceased left a will bearing date the 7th day of April, 1932, which he at that time took in his possession, but which will the petitioner has been unable to secure possession of, although an effort has been made to find the same and to secure possession of the same, which will, however, your petitioner believes and therefore alleges to be the last will and testament of the said deceased." Mr. Lofgren testified that the appellant ...