In re Johnson's Estate

• Decision Date: 08 March 1921
• Citation: 100 Or. 142,196 P. 385
• Parties: IN RE JOHNSON'S ESTATE. v. HELMER ET AL. JOHNSON
• Court: Oregon Supreme Court

196 P. 385

100 Or. 142

IN RE JOHNSON'S ESTATE.

JOHNSON v. HELMER ET AL.

Supreme Court of Oregon

March 8, 1921

Department 2.

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

In the matter of the estate of Michael Johnson, deceased. Contest by Elin Johnson against Eric Helmer, executor of the alleged last will and testament of Michael Johnson, and others. From a decree sustaining the will, contestant appeals. Reversed.

This is a proceeding to contest the will of Michael Johnson deceased. A decree was passed sustaining the will, and contestant appeals.

The will of Michael Johnson was admitted to probate in common form on September 10, 1918, and the testimony of the two subscribing witnesses was given in open court, reduced to writing, signed by them, attested by the judge presiding, and filed. Eric Helmer, named as executor in the will, was appointed executor, and qualified as such. On March 13, 1919 Elin Johnson, mother of Michael Johnson, a resident and inhabitant of the kingdom of Sweden, by her attorney in fact F. H. Whitfield, filed a petition and notice of contest wherein contestant attacks the validity of said will on three grounds: (1) Unsound mind; (2) undue influence; (3) "after making said pretended will the same was and has been tampered with, parts of which are stricken out and other parts inserted after it was executed and witnessed, and thereby rendered void on its face, and that it should be discarded; that it is ambiguous, and not the will of said deceased."

The respondents filed their answer to the petition, denying all the matters alleged in it, as grounds for setting the will aside; and for a further and separate answer the respondents set forth the facts admitted in the answer; that Michael Johnson, on the date of the execution of the will, to wit August 31, 1918, was of the age of 48 years, of sound mind, mentally competent to make his last will; that Eric Helmer was named as executor, and is competent; that the legatees under the will were Edward Johnson, to whom was bequeathed the automobile, Charles Ek, to whom was bequeathed the private library, and Swedish Society Linnea, to which was bequeathed the residue of the estate in trust; the probate of the will in common form, and the admission of the will to probate; that Michael Johnson disposed of his property in conformity with his own desire, was competent so to do, acted voluntarily, and was not influenced by any one; that the erasure and annotation found on said will were made by Michael Johnson himself in his lifetime, and are immaterial and no part of the will, and do not affect its validity; and praying for the admission of said will to probate after due hearing, and that it be declared the last and only valid will of Michael Johnson, deceased.

The contestant thereafter filed the reply to the new matter, practically reiterating the allegations of the petition.

After first ordering his just debts and funeral expenses paid, the will reads thus:

"Second, I give and bequeath unto The Swedish Society, Linnea, all my property of which I die possessed in trust to be disposed of as follows,

"First, Said Society is to pay my funeral expenses and proper burial and after said debts are paid the said Society is to have and take possession in trust for the Pearsons Fund, under their control all my other property except such as hereinafter mentioned, and the said property so devised in trust for the said Pearsons Fund is to be delivered under the care and jurisdiciton of the said Swedish Society, Linnea.

"Second, I give and bequeath my automobile, (portion of text has been stricken) save and except my books, all of which are now in the Evelein Apartment 21 and Northup streets, Portland, to my friend Edward Johnson, of Portland, Financial Secretary for the Swedish Society, Linnea, 860 Thurman St.

"Third, I give and bequeath to Charles Ek, my private Library now in my apartments above named, said Charles Ek lives at 860 Thurman Street, Portland, Oregon."

A printed form of will was used and filled out in typewriting. In the second clause there is a heavy dark line run through part of it with pen and ink. It was not stricken out when signed and witnessed, and does not appear by whom it was done, probably by the decedent. After the typewritten portion above quoted there is another clause added in his handwriting to this effect:

"And I hereby ask that this package and letters be sent to those proper addresses that I have left here in my writing desk."

After the execution of the will, and apparently on the same day, the decedent wrote, in the Swedish language, a letter which is translated as follows:

"To the Swedish Society Linnea--Honored Brother and Sisters:

"As my testament shows, I have left what I have to Linnea to be used for benevolent purposes. I wish Linnea gives me a decent funeral; that Linnea's members act as pallbearers. You can, of course, do as you please with my store, and what is in it, but I would propose Erick Helmer, Theodore Anderson and Waldemar Seton as trustees. I also wish you could sell the store on installments to Ed Johnson and Oscar Lindey, everything is paid for August, with the exception of some small bills for which I have not received statements.

"The rent I have also paid for September. There must be stock in store for six thousand dollars practically, or may be more. I also wish you would take two hundred and fifty dollars from my savings bank book and send that to my mother in Sweden. The address is Widow Elin Johnson, Lekare Killa Wirested, Sweden, and now at last I wish you all good luck and success. And may God bless you and make the society large and strong. Plant a weeping willow on my grave.

Thanks for all Linnea has done for me and all good comradeship, with high regards.

Mike Johnson."

Also postscript: "Let my brother, Gust, have my clothes and small articles if he wants them.

"Mike Johnson."

Upon the reprobate of the will in solemn form, Mr. Michael J. MacMahon, an attorney at law, testified to the effect that he had known Michael Johnson, deceased, some 25 years; that he drew the will at the request of decedent; that Johnson told him of the property he possessed, and told him how he wanted it disposed of; that he wrote the will as Johnson directed; that he and the other witness, Mr. F. H. Patten, were present when Michael Johnson signed the instrument, and both witnessed it at his request. On cross-examination Mr. MacMahon stated that the writing with pen and ink, above quoted, was not contained in the document when it was signed; that there was no "scratching out"; that he was not a witness to the changes; that Johnson was going to leave the will with him, but changed his mind and took it away; that he could not tell what was stricken out; that there were two changes made, one stricken out with heavy ink and one in writing. Mr. MacMahon further stated (we quote from proponent's brief):

"When he came to my office that morning to have the will drawn, he said, 'MacMahon, you are going to lose one of the best friends you ever had now.' I said, 'What Swede is drafted now?' He said, 'No joking about it, I am going to get out of here, and I came up to have my will drawn.' And I said, 'All right, you sit down by the desk and take a piece of paper and fill out what you want in the will and I will draw the will for you.' He sat down and wrote it out in longhand, and what he wrote out on paper I threw in the wastebasket. I have not the paper now. He wrote out all except the last two bequests; he just stated those two. He dictated some things he forgot; the last two. Yes, I understood he was going to commit suicide; at first, I thought it was a joke, but before he left the office I knew he was not joking. I think he was under some excitement. Yes, he was suffering intense pain; he was in intense pain for years. He was morose, had been that way for years. He was always serious; I never saw him laugh in my life. He was a railroad contractor for years; then a saloon keeper for years; and then sold soft drinks; and then went into the book store on Third street for years.

"He never disclosed to me at any time he had a mother. I never knew he had a mother until after his death. But did know he had some brothers and sisters. Yes, he had physical pain all the time; had two tubes always drawing matter from his body; continually suffering; had been so suffering for ten or twelve years. He never mentioned to me that he had had a dependent sister living with his mother. I don't know of him sending money to his mother."

Over the objection of contestant's counsel the testimony of F. H. Patten, who died before the hearing of the contest, taken in the probate of the will in common form, was admitted in evidence.

Mrs. Wm. Lovegren testified in part thus:

"I was acquainted with Mike Johnson all his life. I am his aunt. His mother is my sister. She is older by 12 years than I. Yes; I know all the family. I knew the relatives in Sweden. He came over the same year I came. He had an uncle and a cousin who were insane. I thing the first part of July, 1918, was the last time he was at our house. I was in the store ten days before he died. I spoke to him. He came and grabbed my hand, but he was awfully changed. Yes; he was friendly with me, but he had changed an awful lot. Well, he was acting funny. He did act very funny."

Johnson wrote her a letter, which we quote:

"Portland Oregon, 8--31--16.

"Dear Aunt Maria: When you receive this letter I will not be in this world, but I have always been crazy all through my life and now when I take my own life perhaps I will be doing the best thing I ever done. But, dear Aunt, write my little mother and tell her about this. Now I have not a friend...