In re Dale's Estate

• Decision Date: 18 March 1919
• Citation: 92 Or. 57,179 P. 274
• Parties: IN RE DALE'S ESTATE. [a1] v. MATHEWS. TOBIAS ET AL.
• Court: Oregon Supreme Court

179 P. 274

92 Or. 57

IN RE DALE'S ESTATE. ^[a1]

TOBIAS ET AL. v. MATHEWS.

Supreme Court of Oregon

March 18, 1919

Department 2.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

In the matter of the estate of Anna E. Dale, deceased. Proceeding to probate will by Mattie M. Tobias and others, contested by Nannie Mathews. Decree admitting will to probate, and contestant appeals. Affirmed.

This is a contest concerning the validity of a will executed by Anna E. Dale, deceased. The probate of the will was contested by Mrs. Mathews, on the ground (1) that the deceased was, at the date of its alleged execution, mentally incapable of making a will; and (2) that said instrument was executed under and by reason of the undue influence, importunities, suggestions and persuasions of Mattie M. Tobias, a granddaughter of deceased, and her husband, David S. Tobias.

The matter was heard in probate before Hon. T. J. Cleeton, county judge of Multnomah county, where a decree and findings were made sustaining the validity of the will and admitting it to probate. The matter was thereupon appealed to the circuit court, and upon a hearing before Hon. W. N. Gatens the decree of the county court was sustained, and thereupon contestant appealed to this court.

J. H. Raley, of Pendleton, and E. H. Cahalin, of Portland (M. H. Clark, of Portland, and B. G. Skulason, of Portland on the brief), for appellant.

S. C Spencer, of Portland (Wilbur, Spencer & Beckett, of Portland on the brief), for respondents.

McBRIDE C.J. (after stating the facts as above).

While the testimony in this case is voluminous, comprising over 1,100 pages of manuscript, there is not a single question of law raised which is seriously disputed; the case depending primarily upon what we shall find to be the ultimate facts shown by the testimony and the application of well-known principles of law to such facts.

The burden of proof to establish testamentary capacity rests in the first instance upon the proponent of the will, and, without attempting to discuss the evidence in detail, we think it shows that decedent was mentally capable of making a will.

When this will was executed, she was probably about 87 years of age, and the testimony of numerous witnesses establishes the fact that she was a woman of unusual mental vigor for her age. It is a remarkable circumstance that many persons much younger than she seemed to take pleasure in her society and in visiting and conversing with her. She was apparently a favorite in her neighborhood, and those most intimate with her speak in the highest terms of her sweet disposition and general intelligence. She took and read the daily papers, conversed intelligently concerning current events, and her recollection of the early history of Portland, of which city she and her deceased husband were pioneers, was a source of interest to those concerned with such matters.

In short, we conclude that, while subject to the bodily and mental depreciation that necessarily accompanies old age, it had not affected her faculties to even the extent which one usually expects to find in persons of her age.

Several letters written by her at various dates from January, 1912, to December, 1915, indicate that she was fairly in possession of her faculties and an industrious letter writer, and, while there is some evidence to the contrary, the great preponderance of the evidence is to the effect that she maintained her mental capacity up to the time that the will in question was executed, and even up to a very few days prior to her death.

The will was drawn by Col. S. C. Spencer, who received his instructions as to how it should be prepared from Mrs. Dale herself, after a long conversation and discussion as to its provisions. Prior to the time he was called upon to draw the will, he had no acquaintance with her, or with any of the parties mentioned in the instrument, and therefore could have had no motive in the matter beyond ascertaining the true intent of the testator, and incorporating that intent in the instrument he was called upon to draw. He testifies strongly as to her intelligence and capacity to make a will, and, taking this in connection with other testimony, we have no doubt but that at the time she executed the instrument, she knew and realized exactly what she was doing, and that the will propounded expressed the actual wishes of the testatrix as to what disposition should be made of her property after her death.

So far, then, as the contention that deceddent was mentally incapable of making a will is concerned, we are of the opinion that proponent has shown by the preponderance of the evidence that the testatrix was capable, and that the will expressed the state of her mind at the time it was executed.

We now come to the second contention of contestant, namely, that such condition of mind was induced by the false and fraudulent statements of Mr. and Mrs. David Tobias and Geo. Tobias, a brother of David, in regard to Mr. Mathews and his wife, Nannie Mathews, whereby the mind of decedent was poisoned against her daughter and her husband to the extent that she was induced to revoke a prior will giving Nannie an equal share of the property and to make the will in question, which practically disinherits her. In this contention, contestant has placed upon her the burden of proof in the first instance, aided by certain presumptions which we shall hereafter notice.

It may be well in the outset to consider the reasons given by the testator for not making a larger bequest to her daughter, and for making her granddaughter and great-grand-daughter the principal legatees. The testimony indicates that she had conversed with her son-in-law, David, in regard to making a will. He testifies that she told him that she wanted a will drawn up, and that she wanted his wife, Mattie, to have the Thirteenth street property and his daughter, Helen, to have the Fourteenth street property, and her daughter, Nannie, to have the Marquam Hill property, and that he remonstrated with her for not giving Nannie more, and that substantially the following took place at this interview:

"I said, 'She is your daughter, grandmother, and she has helped some.'

"Grandmother said, 'David, if I give her one of those lots and the property that has got this indebtedness on it--if I give that to Mrs. Mathews, Mr. Mathews can come in and mortgage it, spoil the land and the value of the property, and simply ruin it, and all that property I worked all those years for--it is mine; I can do as I like with it--it would be gone.'

"She said, 'David, you do not really realize what this property is to me; it is something I have toiled for for many years.' She then said, 'Well, you talk it over with your attorney, and explain all about it to him, and see what he says."'

There is no controversy that, pursuant to this interview, witness had Mr. Haas, his attorney in Seattle, prepare a will by the terms of which, among other things, Mrs. Tobias was to receive the Thirteenth street lot, one of the two valuable lots owned by the testator, in fee; the Fourteenth street lot, the other valuable lot, was devised to David, in trust to collect the rents for a period of five years after testatrix's decease, and to divide the income equally between Mrs. Mathews and Mrs. Tobias, and at the expiration of the five-year period the property was to be conveyed to Mrs. Mathews, if living, but in case of her death the property was to be conveyed to Mrs. Tobias.

David Tobias sent his wife to Portland with this draft, which the evidence indicates that Mrs. Dale rejected absolutely, declining to leave any of the property, except the comparatively valueless Marquam Hill lots, to Mrs. Mathews. As before noted, Col. Spencer, a stranger to all parties, was called in consultation in reference to the preparation of the will, and discussed the matter thoroughly with the testatrix, and his account of the interview is substantially as follows:

"A. Well, she told me that she thought she ought to tell me, and that there was some friction. She told me about the fact that there was friction between herself and her daughter, and she said that that grew largely out of her dislike for Nannie Mathews' husband, Mr. Mathews, whose first name I do not now recollect.

"Q. Did she make any statements to you regarding Mr. Mathews--Nannie Mathews' husband? A. Yes, sir.

"Q. What did she say? A. The burden of it was to this effect: He was a sort of a ne'er-do-well, and she was afraid that if Nannie Mathews got this property--she explained to me that there were two lots, the Thirteenth and Fourteenth street lots--there had been erected a building on those two lots, and the building on both lots was all one building, and she was afraid that if Nannie Mathews got it, that through her husband they would lose it, and Nannie Mathews would be left without anything, and at any rate there would be trouble, and she thought that if her granddaughter--that is, David S. Tobias' wife, and their child--their little daughter Helen, had it, that it would be conserved, and she wanted it to go that way, and she told me all about how she had worked for it and that she did not want to dissipate it."

In this interview seems to be the secret of the discrimination made by Mrs. Dale against her daughter. She disliked and distrusted her daughter's husband, and had a firmly fixed idea that the property would be wasted and incumbered if he was left any opportunity to handle it. She had an old pioneer's pride in arranging her affairs in such a way that this property, earned and kept through years of toil and hardship, should not be squandered or dissipated after her death. Her view of the situation may not have been...