In re Knutson's Will

• Decision Date: 26 February 1935
• Citation: 41 P.2d 793,149 Or. 467
• Parties: In re KNUTSON'S WILL. v. KNUDSON. RUDE et al.
• Court: Oregon Supreme Court

41 P.2d 793

149 Or. 467

In re KNUTSON'S WILL.

RUDE et al. v. KNUDSON.

Supreme Court of Oregon

February 26, 1935

Department 1.

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

Suit by Arthur Rude and others against Thelma Johanna Knudson, as executrix and as sole legatee and devisee under the last will and testament of Anton Knutson, deceased. From a decree admitting to probate in solemn form the will of Anton Knutson, deceased, previously admitted to probate in common form, the contestants appeal.

Affirmed.

George C. Johnson, of Portland (Johnson & Mathews and M. B. Meacham, all of Portland, on the brief), for appellants.

F. C Howell, of Portland (Wilbur, Beckett, Howell & Oppenheimer of Portland, on the brief), for respondent.

ROSSMAN, Justice.

Uncontradicted evidence indicates the following: Anton Knutson, with whose estate we are now concerned, died in Portland on April 9 1932, aged 72 years. October 17, 1931, while he was lying ill in a hospital in Portland, he signed the will which the contestants attack. Surviving Knutson, who was a bachelor are his brother Ole, a resident of the state of North Dakota his brother Knud, a resident of the state of Washington, the latter's daughter Thelma, who is defendant and proponent in this proceeding, and the eight children of Anton's deceased sister Mary, contestants in this proceeding. Thelma is a spinster, 37 years of age, and is sole beneficiary of the aforementioned will. The ages of the contestants range from 25 to 45 years. The deceased's estate was appraised as worth $33,810.27. In September, 1929, he submitted to surgical treatment for a hernia, and in February, 1931, he submitted to similar treatment for a disorder of the bladder. He again entered the hospital September 17, 1931, this time on account of gallstones in the urethra. On October 8, 1931, an operation was performed.

Omitting mention of averments which are immaterial to the issues before us, the petition alleges that at the time Anton signed the will he "was not of sound or disposing mind or memory" and was "mentally incapable and incompetent to make said pretended will." For a second ground of contest, the petition avers that at the time he signed the will, and for some days prior thereto, Anton "was in an extremely weakened condition of both mind and body"; that the defendant, being aware of that fact, and knowing that she would take nothing from the deceased's estate except through her father's one-third thereof, unless she could influence Anton to designate her as the beneficiary of his will, "did deliberately plan, determine and set about to procure the execution of the will making her the sole beneficiary of the decedent's estate by ingratiating herself into decedent's confidence through flattery, lavish attentions and pretended affection for him, and by making such false and fraudulent representations to decedent concerning your petitioners as would impair, disrupt and destroy the cordial and affectionate relations she knew to be then existing between decedent and your petitioners, and enable her to gain dominance and control over decedent's mind and subjugate his will to her own." Continuing, it alleges that on October 9, 1931, the defendant learned that Anton was seriously ill, that she hurried to the Portland hospital where he was confined, that, upon arriving, she "did again immediately take full charge and control at Portland Sanatarium of decedent's person and business and until his death she directed him and dictated to him in his business and personal affairs and acted as his confidential agent therein." The petition alleges that she continued "her said sham pretense of disinterested affection and concern for decedent and did continue her said false and fraudulent representations concerning your petitioners." It charges that she thereupon demanded that Anton execute a will making her his sole beneficiary, and that she employed J. B. Pfouts, an attorney, to prepare the will. Contestants further allege that the defendant brought her father, the aforementioned Knud Knudson, to assist her in her scheme; that after the father arrived he, Thelma, and the attorney "did importune, demand and insist that decedent execute" the will at once. In this manner, the petition alleges, the will was executed. The answer denies all of the averments aforementioned, and alleges that when the will was executed Anton was of sound mind and not under restraint or the improper influence of any person.

The transcript of testimony consists of 450 pages and is accompanied by 39 exhibits, consisting, for the most part, of letters. We have read and studied this evidence with care. We deem it unnecessary to set forth a complete review of it. It indicates that Anton came to Portland 40 years or so ago, and at once established himself in the grocery business in the vicinity of Thirty-Ninth and Belmont streets in a building of which he acquired ownership. Some time before his death he disposed of his business, but retained ownership of the real property. Anton made his home in an apartment over the store, and was still living at Thirty-Ninth and Belmont streets at the time of his death. As time passed he acquired other property at Thirty-Ninth and Belmont streets and improved one of his lots with a substantial structure. Early residents of this neighborhood who had known Anton for many years described him as a strong-minded man who kept his business affairs to himself and who was never known to have changed his mind. Each declared, however, that he possessed a clear, keen mind.

Anton began to manifest fondness for the defendant when she was a very young girl and his attachment for her continued until the time of his death. When she was not living in Portland he frequently sent for her, had her visit him at his apartment, and in various ways showed her the attentions that are bestowed by an affectionate uncle upon a niece. Later, she became a school teacher and was for a time located at Forest Grove. At that time Anton would drive to Forest Grove in his automobile at the week-end and bring Thelma to his home. Frequently he was accompanied by a friend. Sunday evening he and his friend would return Thelma to Forest Grove. While visiting in his apartment she assisted him with his household duties and also coached him in the studies which he was pursuing preparatory to acquiring citizenship. When Thelma left Forest Grove for a better position with the schools of Everett, Wash., the two exchanged correspondence and at times Thelma came to Portland to visit Anton. Occasionally the two went upon fishing trips and other outings. The contestants make no contention that at this period of time Thelma was actuated by any motives except wholesome, natural ones. Anton's affection for Thelma is revealed in many letters, as well as by the testimony of many of his old-time friends. The latter described the pleasure that he apparently felt in introducing Thelma as his niece and the satisfaction that he obtained through knowledge that she was a school teacher. C. C. Nepple, who had known Anton for 22 years, testified that the latter frequently spoke of Thelma, stating at times, "She is the only girl I have got." A. B. Nelson had known Anton for 30 years, and Thelma for about 20 years. He had accompanied them many times on the rides to and from Forest Grove. According to him, Anton, in referring to Thelma and her father, would declare, "That is all the relations I have now, Mr. Knudson and Thelma." Mrs. Marie McKenna, who had been a friend and customer of Anton since 1907, testified that Anton was very fond of referring to the defendant as "the girl." The neighborhood barber, who had known Anton for 17 years, testified that the latter always spoke "very commendably" of Thelma, frequently expressing himself as pleased "with the way she was taking care of him." John Eder, a friend for over 30 years, and who had been on fishing trips with Anton, testified that he "talked of her (Thelma) a lot of times." He added: "He was always telling me how proud he was of his niece, that she was a smart girl and very industrious and economical, conservative, and he thought a lot of her." Mrs. Mollie Dahl, who had known Anton for more than 50 years, testified: "He always wanted to speak of her (Thelma) every time I would see him, and whenever he did it was in very endearing terms." William Ferris, whose farm adjoined one owned by Anton, testified that the latter frequently spoke to him about his niece, stating: "I think a whole lot of her." His wife testified to like effect. The superintendent of the postal station at Thirty-Ninth and Belmont streets, who knew Anton for 13 years, testified: "He seemed to be very closely attached to her (Thelma), about the only one that he took any real interest in. She was here during his entire illness, and whenever he became ill, he used to tell me, he said, 'I'll have to send for the girl."' Mrs. Amanda Tench, with whom Anton boarded at one time, testified that he spoke of Thelma as "a mighty fine girl." Her husband gave like testimony. This testimony is not contradicted, and the credibility of these witnesses is not attacked.

Anton's sister Mary was married to an individual named Rude. To them ten children were born, eight of whom survive. The family came to Portland in 1910. While the children were young they exchanged visits with Anton, but later all of the eight children, with the exception of one, married, and to the seven thus married children were born. Mary died in 1927. Her husband, the contestants' father, died in 1916. We believe that the testimony indicates that after Mary's sons and daughters were married their interest in Anton declined as it became engrossed in those at home. No...