In re Carr's Will

• Decision Date: 31 May 1927
• Citation: 121 Or. 574,256 P. 390
• Parties: In re CARR'S WILL. v. RYAN. CARR
• Court: Oregon Supreme Court

256 P. 390

121 Or. 574

In re CARR'S WILL.

CARR v. RYAN.

Supreme Court of Oregon

May 31, 1927

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

Petition by John Carr against Catherine B. Ryan, executrix, contesting the will of Robert Carr, deceased. From a judgment for proponent contestant appeals. Affirmed, without costs in either court.

Robert Carr resided alone in Portland, Or., for several years. He was a reticent man. During the year 1923 he was in poor health and afflicted with cancer of the stomach. Mrs Catherine B. Ryan was a daughter of an old friend of Robert Carr, and often visited him at his cabin in Portland, and administered to his wants during the autumn of 1923. About the last of December, 1923, Mrs. Ryan went to the home of Robert Carr and took him to her home near Multnomah Station. The old gentleman was soon after confined to his bed a large part of the time, and died testate, in Multnomah county, on the 15th day of February, 1924. Robert Carr, deceased, left an estate in Multnomah county. On February 18, 1924, an order was made by the circuit court of the state of Oregon for Multnomah county, admitting to probate in common form the last will and testament executed by Robert Carr, deceased, on February 1, 1924.

John Carr is the only son and heir of the deceased. He resided in Portland, Or., with his family, some little distance from his father. On May 3, 1924, John Carr filed a petition contesting the last will and testament of the deceased, on the ground that the testator at the time of the execution of the will was of unsound mind and without testamentary capacity, and on the further ground that the executrix, Catherine B. Ryan, and Cornelius J. Ryan, her husband, and Hugh Ryan, her son, exerted undue influence upon Robert Carr and caused him to execute the will. The executrix filed an answer and petition for probate of the last will and testament of the deceased in solemn form. A reply was filed by the contestant, and the contest was heard. On July 30 1924, the circuit court passed a decree admitting the last will and testament to probate in solemn form. The circuit court found that the testator, at the time of the execution of the will, was of sound and disposing mind and memory, and capable by last will and testament of disposing of his estate. The court further found that neither Catherine B Ryan, the executrix, C.J. Ryan, nor Hugh Ryan, exercised any undue influence, fraud, or misrepresentation upon the deceased, and that deceased executed his last will and testament freely and voluntarily. The contestant appeals.

Oren Richards, of Portland (Richards & Richards, of Portland, on the brief), for appellant.

John Kavanaugh, of Portland (John J. Beckman, of Portland, on the brief), for respondent.

BEAN J. (after stating the facts as above).

It appears from the record that Robert Carr, the deceased, and his wife, the mother of John Carr, the contestant, were divorced about 1912. At that time John Carr, the contestant the son, and Margaret Carr, a daughter, since deceased, went to live with the mother. After the mother's death, Margaret Carr returned and lived for a time with her father, while she was teaching school. John Carr, the contestant, visited his father occasionally, and his father visited John Carr's family at times. When Robert Carr's health declined in 1923, for some reason, either the distance between the home of Robert Carr and his son's residence, some three-fourths of a mile, or for some other reason, John Carr was not so situated as to give his father the attention and care that he needed in his sickness and declining years. It is in evidence that John Carr and his wife invited the old gentleman to come and live with them, but he did not accept the invitation. John Carr never heard of Mrs. Ryan prior to November, 1923, and for some two or three weeks did not know that his father had gone to live with the Ryans. Mrs. Ryan telephoned three or four times to the car barns, which were the headquarters of John Carr in his work. He was often out on the line.

When John Carr answered one of the telephone calls, Mrs. Ryan told him that his father was at her house and was a very sick man and desired to see him. Thereafter John Carr, with his wife, went to the home of the Ryans and saw his father, who was sick and confined to his bed most of the time. He afterward visited his father several times. On January 3d, Robert Carr was able to go with Mrs. Ryan to consult Dr. John L. Loomis at his office in Portland. Afterward Dr. Loomis visited him at the Ryan home, but later became ill, and Dr. William A. Shea was called to attend Mr. Carr. Dr. Shea began attending the deceased January 22, 1924, and attended him until he died. Four or five days elapsed between the first and second visits, then two days elapsed; after that Dr. Shea saw Mr. Carr every day, and sometimes oftener. Dr. Shea called Dr. Ernest F. Tucker into consultation about January 29th. The two physicians examined the patient together, and the diagnosis of cancer of the stomach was confirmed, and it was decided that all that could be done was to endeavor to make the patient comfortable. A nurse, Mrs. Elsie Venetor, was called to attend Mr. Carr on February 7, 1924, and attended him until the 11th of that month. Immediately after Lenora Binns, another nurse, came to attend the sick man, and remained with him until he died.

On January 28th Mr. Carr sent for Mr. John J. Beckman, an attorney, of Portland, who had been attorney for the administrator of the estate of Margaret, the daughter, and also connected with the estate of the mother, and had done business for Mr. Carr, to come to the Ryan home to draw his will. Mr. Beckman was not acquainted with the Ryans prior to that time. After a general conversation with Mr. Carr, he obtained from him the data from which to draw a will, and returned to his office and wrote a will, and returned to the Carr home where it was executed. Mr. Carr sent for Mr. John J. McGreal, a business man of Portland, and Mrs. Bertha E. Richards, a neighbor, to come to the Ryan residence and attest the will. All of the information received by Mr. Beckman for the preparation of the will, as he testifies, was given him by Mr. Carr personally. The testator described his property and interest to the attorney and mentioned his family relations. He gave the attorney all the information concerning the several devises and bequests contained in the will.

On the 31st of January, 1924, Mr. Carr again had Mr. Beckman called to change certain provisions of the will. Mr. Beckman came to the Ryan residence, and obtained the information, and returned to his office and drew the last will and testament for Robert Carr, and went to the Ryan residence, where the same witnesses were called to witness the will, and it was executed by Robert Carr on February 1, 1924. Both of the witnesses to the will were acquainted with the testator before the execution of the document. They appeared to have no interest in the matter.

Mrs. Richards was formerly a court reporter. She often went to the Ryan home to see Mr. Carr. Mr. Beckman, the attorney, was acquainted with him for several years. Each of these persons testified, as witnesses upon the hearing in this case, to the effect that Mr. Robert Carr, at the time he executed the two wills, although physically very feeble, was of sound and normal mind, and understood the nature of the business in which he was engaged at that time.

The attending physicians, who were especially skilled in the diagnosis and treatment of Mr. Carr's disease, testified to the effect that at the time of the execution of the will the deceased was of...