In re Cruson's Estate

• Decision Date: 29 August 1950
• Parties: In re CRUSON'S ESTATE. STATE v. LONG et al.
• Court: Oregon Supreme Court

221 P.2d 892

189 Or. 537

In re CRUSON'S ESTATE.

STATE v. LONG et al.

Supreme Court of Oregon.

August 29, 1950

Cecil H. Quesseth, Assistant Attorney General, argued the cause for appellant. With him on the brief were George Neuner, Attorney General, and Fred A. Miller, Deputy Attorney General.

Orval N Thompson, of Albany, argued the cause for respondents. On the brief were Weatherford & Thompson and Merle A. Long, all of Albany.

Before LUSK, C. J and BELT, ROSSMAN, HAY and LATOURETTE, JJ

ROSSMAN, Justice.

This is an appeal from an order in the nature of a decree of the Circuit Court which overruled objections presented by the State to the final account of Merle Long, administrator of the estate of Lucille Cruson, Deceased, and dismissed a petition filed by the State for the escheat of the decedent's estate. The respondents, in addition to Long, are G. F. Cruson, Jr. administrator of the estate of G. F. Cruson, Sr., deceased G. F. Cruson, Jr., individually, and Jacqueline Dagman. G. F Cruson, Sr., and Lucille Cruson, both now deceased, were husband and wife. G. F. Cruson, Jr., and Jacqueline Dagman were, respectively, son and daughter of G. F. Cruson, Sr., by a prior marriage. G. F. Cruson, Sr., and his wife, Lucille, were killed October 26, 1947, when an auto driven by the husband, in which his wife was a passenger, left highway No. 20 and, after plunging over a cliff, fell upside down upon a ledge and then toppled over into the South Santiam river. The catastrophe occurred near Cascadia.

The final account of the administrator of the estate of Lucille Cruson states that 'the name and age of the sole heir of the decedent is G. F. Cruson, Sr., husband, aged 62 years, that since the death of said Lucille Cruson the said G. F. Cruson, Sr., died intestate.' The objections filed by the State, acting through its Land Board, averred: 'Said G. F. Cruson, Sr., did not survive the decedent, Lucille Cruson, and was not the legal heir of said decedent. * * * Your petitioner is informed and believes, and therefore asserts, that Lucille Cruson died intestate and without legal heirs and that, upon her death, her estate escheated to the State of Oregon.'

The respondents filed answers to the State's objections and thereafter a trial occurred upon the issues. It was the contention of the State at the trial that husband and wife died simultaneously. The respondents contended that the husband survived his wife. Oregon Laws 1947, chapter 527, amended § 2-407, O.C.L.A., by deleting from it subsection (41) which created presumptions borrowed from the Continental law concerning survivorship in instances where two persons perished in the same calamity. Oregon Laws 1947, chapter 555, which is the Uniform Simultaneous Death Act, says, in part: 'Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except * * *.'

The State depended upon the statute just quoted to establish its claim. The respondents relied upon evidence which we shall presently review. At the close of the trial the court entered the attacked judgment order; it holds: 'Lucille Cruson died on October 26, 1947, and was survived by G. F. Cruson, Sr., her husband and sole heir at law, and that G. F. Cruson, Sr., thereafter died and left as his sole heirs at law a son and daughter, G. F. Cruson, Jr., and Jacqueline Dagman.'

The State presents the following assignments of error:

'The Court erred in holding that Lucille Cruson, deceased, was survived by her husband, G. F. Cruson, Sr.'

'The Court erred on examination of witness Glenn Huston, Linn County Coroner, in failing to sustain appellant's objection to the following question [Tr. p. 28]:

"Q. Well, from your experience as a mortician now, did you form an opinion as to which one of these persons died first?"

Ancillary to the assignments of error, the State contends (1) the burden of proof was upon the respondents to prove that the husband survived his wife; (2) this proceeding is governed by equitable principles; (3) the term 'sufficient evidence' which appears in Oregon Laws 1947, chapter 555, means the amount of proof which satisfies an unprejudiced mind; (4) death certificates are prima facie evidence of the facts recited by them; (5) the evidence did not show that the husband survived his wife; and (6) a witness should not be permitted to give his opinion if he can accurately state the facts which he observed.

We shall first take note of the second of the above-listed contentions. The course taken by the State in this proceeding was evidently patterned upon the procedure delineated in Re Wakefield's Estate, 161 Or. 330, 87 P.2d 794, 89 P.2d 592. That decision sustained the regularity of the procedure and deemed the cause as 'in equity.' It said: 'On appeal, this court is not bound by the findings of the trial court.' See, to same effect, In re Anderson's Estate, 157 Or. 365, 71 P.2d 1013. Accordingly, it is our duty to analyze the evidence and try the cause de novo.

It is conceded that G. F. Cruson, Sr., and Lucille Cruson were husband and wife; that G. F. Cruson, Jr., and Jacqueline Dagman are the son and daughter of G. F. Cruson, Sr., by a prior marriage; that G. F. Cruson, Sr., and his wife, Lucille, lost their lives October 26, 1947, when an automobile driven by the former plunged from a precipice adjacent to highway No. 20 near Cascadia; that after their bodies were found it was discovered that the skulls of both husband and wife were fractured; that no one except the decedents saw the fatal mishap; that following the latter no one saw the unfortunate victims until after life had left them; that no autopsy was performed upon their remains; that no medical witness testified in this case; and that no evidence was presented which shows whether or not the cause of death of either husband or wife was drowning. The respondents do not dispute evidence presented by the State which shows that the wife died intestate and without heirs at law, unless her husband survived her. The State does not take issue with testimony which described G. F. Cruson, Sr., as 62 years of age, six feet, one inch, tall, weight 175 pounds, and 'in very good physical health.' Nor does it dispute other testimony which showed that Mrs. Cruson was about 55 years of age, that she weighed not more than 100 pounds and that a short time prior to the disaster she was the victim of a severe attack of ill health.

Three persons were in the automobile when it carried its occupants to their death. Since the third occupant, one Crandall, had no bearing upon the issues before us, we shall mention him no further.

According to a police report which is before us as an exhibit, the Crusons were last seen alive at 2:00 a. m., October 26, 1947, when they left a dance hall. Mr. Cruson was driving their car. The same report, referring to the place where the car left the roadway, says: 'It seemed apparent that said Buick was traveling at a high rate of speed and failed to negotiate a curve.' That report was made by Officer Everett Hockema, who testified on behalf of the State. The coroner of Linn County, that being the county in which the fatality occurred, acting pursuant to the requirements of Oregon Laws 1941, chapter 130, § 28, prepared and signed death certificates concerning the death of both husband and wife. Each states that death occurred at 2:15 a. m., October 26, 1947.

The highway in the vicinity of the casualty is not level and makes a turn. The Cruson car was traveling upgrade, that is opposite to the current of the river. The turn in the road was toward the car's right. To the left of the pavement is a shoulder, and beyond the latter, but 35 feet lower, is the South Santiam river. Descending 35 feet from the shoulder to the water is a rocky cliff which is so steep that it is virtually precipitous. Large boulders and rocks line the shore of the swift-flowing river.

No one knew that a disaster had occurred until about 9:00 a. m., October 26, 1947. A half hour later there came to the scene A. E. Nesbitt, H. Williamson and F. M. Morrison, employees of the United States Forestry Service. The two first mentioned were friends of the Crusons. A few minutes later, Glenn Huston, Linn County coroner, came to the place of the misfortune and shortly the four were joined by Everett Hockema, the aforementioned State Police officer. All five of the persons testified. There is no conflict in their testimony except in details which are not controlling. All five did not testify to each of the particulars which we are about to relate.

The Cruson car, upon leaping from the roadway, overturned in midair and descended upside down upon a rocky ledge near the water. After landing upon its top it tipped over, or rebounded, and fell right side up in the water. Hockema described the damage inflicted upon the ledge by the weight of the careening car. When the automobile came to rest in the water, it was facing in the same direction in which it had traveled, that is, upstream. The top of the car, especially the forward part, was badly crushed and crumpled. The hood was missing, and all of the glass, with the exception of the rear window, was shattered. One of the witnesses swore that both left-side doors were open. According to him, the rear one was torn from its lower hinge. Another witness thought that both of the front doors were open, and one believed that all doors were open. Some of the water of the river swirled around the car and some flowed through it.

The automobile was virtually submerged in the river and only a small part of the rear of the top protruded above the...