In re Linville's Estate

• Decision Date: 23 June 1931
• Citation: 300 P. 505,137 Or. 145
• Parties: IN RE LINVILLE'S ESTATE. [a1] v. POWERS ET AL. COPENHEFER
• Court: Oregon Supreme Court

300 P. 505

137 Or. 145

IN RE LINVILLE'S ESTATE. ^[a1]

COPENHEFER v. POWERS ET AL.

Supreme Court of Oregon

June 23, 1931

Department 2.

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

Proceeding to contest the will of Harriett Linville, deceased, by Ethan Allen Copenhefer, against Mary Powers and others. From a judgment sustaining the will and admitting it to probate contestant and certain of the contestees appeal.

Affirmed.

Floyd D. Moore and W. L. Cooper, both of Portland for appellants.

T. B Handley, of Portland, for respondents.

CAMPBELL J.

On August 20, 1929, Harriett Linville died, leaving a will dated August 2, 1929, in which she made a few minor bequests to her son, Ethan Allen Copenhefer, and some other relatives, and left the rest of her estate to a foster daughter, Nora Powers, as residuary legatee who was nominated in the will as executrix. On August 27, 1929, this will was probated in common form, and Nora Powers, the foster daughter and residuary legatee, was appointed executrix. On January 6 1930, this contest was instituted by the son filing his petition, asking that the will be set aside and that the decedent be declared to have died intestate, on the grounds: (1) That, at the time the will was made, decedent was of unsound mind and mentally incompetent; (2) that the will was made under undue influence exercised by the residuary legatee.

This petition was tried to the circuit court, and, after a full and complete hearing, the court dismissed the contest, sustained the will, and admitted the same to probate. Contestant appeals.

It appears that the testatrix in her youth married a Mr. Copenhefer. The issue of this marriage was one son, Ethan Allen Copenhefer, contestant herein. About the year 1893 Mr. and Mrs. Copenhefer took into their home a female child about four weeks of age to bring up as their own. This girl lived with them as one of the family until her marriage. She was married at the age of eighteen years. The elder Copenhefers accumulated considerable property. At the time of the husband's death, they owned as community property in the state of Washington, where they lived, something over 1,000 acres of land and considerable personal property. The husband died in the year 1906. The family continued to live together and worked the farm up until the foster daughter married and moved into a home of her own. The son continued to live with his mother until his marriage, when he also moved into his own home. About 1911 the family decided to give up farming, and sold off the farming utensils and equipment and moved to Portland. The mother owned a house and lot in the town of Dallas and 160 acres of timber and brush land in Tillamook county, together with 500 acres of land which came to her as her share of the community property in the state of Washington. Some time after the death of her husband Mr. Copenhefer, the testatrix married a Mr. Falkner, who lived only a few years thereafter. She later married a Mr. Linville, who died in 1929.

The evidence indicates that testatrix was a woman of some business sagacity, and of a rather jovial, kind-hearted disposition. She and the son, as lessors, rented the farm property in Washington, and seemed to get along well enough with their affairs until 1928, when it appears that she became dissatisfied with the son's conduct of her business affairs. They called in attorneys, who adjusted their differences by the mother deeding her farm land to the son for the consideration of a $500 annuity during her life. This agreement appears to have been carried out by the son. She had some time previous to this deeded to the son her 160 acres of land in Tillamook county, and transferred to him her equity in the property at Dallas. On July 12, 1929, she had a partial paralysis that did not affect her to any great extent. On August 3, 1929, she was affected by what the doctors diagnosed as a cerebral embolism, which eventually caused her death. Both the son and the foster daughter seemed to have gotten along nicely with each other as well as with the mother at all times. They treated her with kindness and consideration, especially through her last illness. A day or two before the execution of the will, she requested her foster daughter to engage a lawyer and have him come to her house, as she wished some legal work done. The foster daughter, not being acquainted with any lawyers, sought the advice of a friend, a Mr. Kester, who suggested that she employ Mr. Handley. They called on Mr. Handley, and asked him to go to the home of the testatrix, which he attempted to do that evening, but, not having had the correct address, failed to find the place. Mr. Handley seems to have been informed of the purpose of the visit, and gave them some legal advice which led them to the conclusion that what was required was a will by the testatrix. The next morning the testatrix had her foster daughter make some notes as to the provisions she wished in her will. These notes were taken to Mr. Handley's office, where he prepared a will ready for the signatures and sent it to the testatrix. It seems to have been delivered to her about noon of August 2, 1929. That evening she called in two of her neighbors, and in their presence signed the will and declared it to be her last will and testament, and requested them to sign as witnesses thereto. This they did in the presence of the testatrix and of each other. There was no one else in the room at the time the will was executed.

The rule is well settled in this state that "the burden of proof was upon the proponent to establish the testamentary capacity of the deceased." Hubbard v. Hubbard, 7 Or. 42; King v. Tonsing, 87 Or. 236, 170 P. 319 320; In re Sturtevant's Estate, 92 Or. 269, 178 P. 192, 180 P. 595; In re Estate of Riggs, 120 Or. 38, 241 P. 70, 250 P. 753, 754. It is also well settled that "the...