In re Fletcher's Estate

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, Justice.
• Citation: In re Fletcher's Estate, 32 P.2d 123, 147 Or. 139 (Or. 1934)
• Decision Date: 01 May 1934
• Parties: In re FLETCHER'S ESTATE. v. WILLIS. FLETCHER

32 P.2d 123

147 Or. 139

In re FLETCHER'S ESTATE.

FLETCHER v. WILLIS.

Supreme Court of Oregon

May 1, 1934

Department 2.

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

Contest of the will of F. X. Fletchers, deceased, by Ellen Jane Fletcher against Tillie Willis. From the decree, contestant appeals.

Affirmed.

B. G. Skulason, of Portland, for appellant.

L. W O'Rourke and John F. Logan, both of Portland, for respondent.

BEAN Justice.

This is a contest of the will of F. X. Fletcher, deceased. It is alleged by the contestant that the will, probated in common form, is not the will of decedent; that F. X. Fletcher, the decedent, by reason of his weakened physical condition, did not know or understand that he was making his will. This phase of the case is not urged at the present time. It is also alleged and contended, on the part of the contestant, that the will was not written in accordance with the directions of the testator, and further that the name of the executor of the will was changed after the will was executed by the decedent.

In February, 1932, Mr. Fletcher, 71 years of age, consulted Mr Edwin Lindstedt, an attorney at law, in Portland, Or., and advised him that he wanted to make a will. Miss Ruth E. Carr the stenographer to whom Mr. Lindstedt dictated the will testified that it was dictated in the presence of Mr. Fletcher at Mr. Lindstedt's office. Mr. Lindstedt testified, as he remembers it, that the directions were given at Mr. Fletcher's house. At that time, Mr. Fletcher was the father, by his first wife, of ten children, all of whom were living and had reached the age of majority, ranging in ages from 25 to 46 years. He lived with his second wife, Ellen Jane Fletcher, contestant. The estate was inventoried at $32,357.10, most of which was personal property in the form of notes, mortgages, and contracts on real estate. About February 28, 1932, Mr. Fletcher became slightly ill and was confined to his home, but not to his bed. On Sunday, March 6, 1932, F. X. Fletcher advised his oldest son, Charles Fletcher, that he had a will drawn at Mr. Lindstedt's office, and on March 7, 1932, Charles Fletcher went to Mr. Lindstedt's office in the Failing Building, Portland, Or. Mr. Lindstedt took the will that had been dictated by him in the presence of F. X. Fletcher, deceased, as testified to by Miss Ruth E. Carr, to F. X. Fletcher's home. The will had been dictated about a month before that time. On the way from Mr. Lindstedt's office to Mr. Fletcher's home, Mr. Lindstedt advised Charles Fletcher that he had requested Mr. Fletcher to sign the will on one or two prior occasions, but Mr. Fletcher, the decedent, did not want to sign it because he (Lindstedt) was named executor therein. When he arrived at the home of F. X. Fletcher, Mr. Lindstedt read the will aloud in the presence of F. X. Fletcher, the deceased, Ellen Jane Fletcher, the widow and contestant, Charles Fletcher, and Rev. J. F. B. Engertsberger, assistant pastor of St. Stephens Catholic Church, of which church both the decedent and contestant were members. When Mr. Lindstedt, in the reading of the will, came to the words "Edwin Lindstedt" contained therein, F. X. Fletcher, the decedent, objected and indicated that he desired Tillie Willis, his daughter, should be made executrix, and, as testified by Rev. Engertsberger, who is commonly called Father Basil, one of the witnesses to the will, Mr. Lindstedt, the attorney for Mr. F. X. Fletcher, drew a line through his own name with a pen and inserted the name of "Tillie Willis" in lieu of and in place of his own name, and also drew a line through the "tor" of the word "executor," changing the designation from "tor" to "trix." F. X. Fletcher then signed the will, Father Basil assisting him by steadying his hand. Next Rev. J. F. B. Engertsberger attested the will, and, immediately following, Mr. Lindstedt, the attorney for the decedent herein, signed the attestation clause on the will. Omitting the attestation clause, which is in the usual form, the will is as follows:

"I, F. X. Fletcher, being of sound mind and memory and not acting under duress, fraud or undue influence of any person whatsoever, do make, publish and declare this my last Will and Testament in the following manner, that is to say: I. I order and direct that all of my just debts and funeral expenses be paid as soon after my death as is practicable. II. I bequeath to my beloved wife, Ellen Jane Fletcher, for and during her natural life, all revenue, interest and rental from my property whether real, personal or mixed; out of said revenue, interest and rental, she is required to pay the taxes, insurance against fire and such other sums that shall be necessary for the maintenance of my property. III. I give, devise and bequeath the remainder and residue of my property, share and share alike, to my ten children, to-wit: Charles A. Fletcher, Etta Hudson, Dora Sundberg, Eva Krawsky, Mertle Fletcher, Mary Jaeckel, Tillie Willis, Clara Green, Hermas Eugene Fletcher and Austin Fletcher, but said property is not to be distributed until after the death of my said wife, Ellen Jane Fletcher.

"I make, constitute and appoint Tillie Willis to be the Executrix of this my last will and Testament, hereby revoking all former Wills by me at any time made.

"In Witness Whereof, I have hereunto set my hand and seal this 7th day of March, 1932.

"[Signed] F. X. Fletcher [Seal.]"

The will was probated in common form on April 12, 1932. Edwin Lindstedt, the attorney, signed the usual affidavit, authenticating the will and stating that F. X. Fletcher published the said instrument as, and declared the same to be, his last will and testament, "and requested us, in attestation thereof, to sign the same as witnesses. The said J. F. B. Engertsberger, O. S. B. and I, then and there, in the presence of F. X. Fletcher, deceased, and in the presence of each other subscribed our names as witnesses to said instrument," and, further, that the said F. X. Fletcher "was of sound and disposing mind, and not under any restraint, undue influence or fraudulent misrepresentations." Upon the probate of the will in solemn form and the hearing of the contest, Mr. Lindstedt testifies that he remembers the change in the name of the executor was made after the will was executed by F. X. Fletcher.

A careful reading of the testimony indicates that Mr. Fletcher was not satisfied to have Mr. Lindstedt act as executor, and while he was partially paralyzed and could not talk very plainly, he indicated that he desired Tillie Willis to be made executrix. Father Basil, who was a very careful and fair appearing witness, testified that there was some change made in the will and it was then signed by Mr. Fletcher, the decedent, if he remembered correctly. Charles Fletcher testified to the same effect.

A full attestation clause, which recites compliance with all formalities of execution and is signed by the witnesses, is prima facie evidence of the validity of the will, although the witness' memory is faulty, or he contradicts the facts stated in the clause, or where the witness is dead. 40 Cyc. 1304; 28 R. C. L. 368, § 369; In re Skinner's Will, 40 Or. 571, 62 P. 523, 67 P. 951; In re Mendenhall's Will, 43 Or. 542, 72 P. 318, 73 P 1033; 1 Page on Wills (2d Ed.) 1119. It is stated in 1 Page on Wills, 1119, as follows: "When a paper propounded as a will is shown to have been signed by the alleged testator and the requisite number of witnesses, in the absence of any satisfactory evidence to the contrary, the presumption is that all the formalities have been complied with." And on page 1124 of the same volume, we find: "Even where a subscribing...