In re Lobb's Will

• Decision Date: 29 June 1945
• Citation: 177 Or. 162,160 P.2d 295
• Parties: IN RE LOBB'S WILL LYONS ET AL. <I>v.</I> WILSON ET AL.
• Court: Oregon Supreme Court

177 Or. 162

160 P.2d 295

IN RE LOBB'S WILL LYONS ET AL.v.

WILSON ET AL.

Supreme Court of Oregon.

Argued May 31, 1945.

Reversed June 29, 1945.

Rehearing denied September 11, 1945.

Wills

1. In will contest evidence established that fiduciary relationship existed between testatrix and her attorney who was chief beneficiary of will, notwithstanding attorney made no charge for his services.

Wills

2. In will contest, evidence of testatrix' declarations that her attorney who was chief beneficiary of will offered testatrix a mink coat and kissed her, and that if testatrix were 20 or 30 years younger she would marry him, was properly admitted not to establish undue influence, but to show that state of testatrix' mind was such, at time when will was executed, as to make her susceptible to improper influence.

Wills

3. In proceeding to contest will under which testatrix' attorney was chief beneficiary, alleged fact that attorney charged nothing for his services to testatrix while maintaining upon witness stand that his contacts with testatrix were business ones only was in itself some evidence on question of undue influence or by way of self-impeachment.

Wills

4. "Undue influence," to be sufficient to cause a will to be set aside, must have been such as to have overcome free volition or conscious judgment of testator and to have become the efficient cause without which will would not have been made.

Wills

5. That confidential relationship existed between testator and beneficiary is not in itself sufficient to vitiate a will, in absence of evidence indicating that beneficiary exercised undue influence, but where confidential relationship is shown to have existed, and will is inconsistent with claims of duty and affection, slight evidence that beneficiary abused testator's confidence is sufficient to invalidate the will.

Wills

6. In will contest by testatrix' niece, letters written by testatrix to niece should have been admitted, where tenor of letters tended to show cordiality of relationship between testatrix and niece.

Wills

7. A principal beneficiary under will who sustains confidential or fiduciary relationship toward testator, and actively participates

in preparation of will, must assume, when will is attacked upon ground of undue influence, the burden of proving that he did not exert such influence, especially where beneficiary is testator's attorney.

Wills

8. The preparation of will by attorney who shared offices with testatrix' attorney who was chief beneficiary of will, and who instructed the attorney preparing will as to provisions to be included therein, did not amount to "independent advice", in determining whether will was executed by undue influence.

Wills

9. In determining whether will was executed by undue influence, "independent advice" to testator does not necessarily mean advice of a lawyer, but may consist of advice of disinterested competent person disassociated from interest of proposed beneficiary.

Wills

10. That attorney who shared offices with testatrix' attorney who was chief beneficiary of will in preparing will satisfied himself that testatrix was mentally competent and knew contents of will was not enough to constitute independent advice.

Wills

11. When will is drawn by beneficiary who is in confidential relation with testator, a presumption of undue influence arises.

Wills

12. In will contest, will was required to be set aside on ground that testatrix' attorney, who was chief beneficiary of will, failed to overcome presumption of undue influence arising from the evidence.

Wills

13. The allowance of disbursements by way of attorney's fees and executor's commissions is not properly before Supreme Court on appeal from decree dismissing will contest, but is in first instance to be determined by probate court.

Executors and administrators

14. Probate court has discretion to allow executor reasonable expenses incurred in his defense of will, provided he acts in good faith regardless of whether he is successful in such defense.

Executors and administrators

15. The setting aside of a will, because of undue influence exerted over testator by executor-beneficiary, implies a holding of lack of good faith on executor's part in defending will, in determining propriety of allowing executor reasonable expenses incurred.

Executors and administrators

16. Where executor was sole beneficiary under will and codicil, successful will contestants were not chargeable with executor's expenses in defense of will.

Wills

17. On appeal from decree dismissing will contest, every reasonable inference should be invoked in favor of the petition in objection to probate.

Wills

18. A petition in will contest charging undue influence by testatrix' attorney, who was chief beneficiary of will, upon testatrix while he sustained toward her a fiduciary relationship and execution by testatrix as result of such undue influence of will and codicil which expressed not testatrix' will but his, in absence of a timely motion to make more definite and certain, was not demurrable as failing to state facts sufficient to constitute a cause of contest.

                  Right to allowance out of estate of attorneys' fees in attempt
                to establish or defeat will, 69 A.L.R. 1052. See, also, 21 Am
                Jur. 690
                  33 C.J.S., Executors and Administrators, § 225
                

Before BELT, Chief Justice, and KELLY, BAILEY, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ASHBY C. DICKSON, Judge.

Proceeding in the matter of the probate of the last will of Josephine M. Lobb, deceased. Will contest by Anna Lyons and others against S.F. Wilson, individually and as executor of the last will of Josephine M. Lobb, deceased, and another. From a decree of the probate court dismissing the contest, the contestants appeal.

REVERSED. REHEARING DENIED.

Francis F. Yunker, of Portland, for contestants-appellants.

W.C. Bristol, of Portland, for respondents.

HAY, J.

This proceeding in contest of the will and codicil of Josephine M. Lobb, deceased, is now, for the second time, before this court on appeal. It was instituted by Mrs. Lobb's heirs at law against S.F. Wilson, who, under the will, was residuary legatee and executor-nominate and, under the codicil, became sole beneficiary. The contest was based upon the ground of undue influence alleged to have been exercised over Mrs. Lobb by Mr. Wilson. A hearing was had, at which the will and codicil were proved in solemn form, after which the contestants offered evidence tending to establish their charges of undue influence. Thereupon, on motion of counsel for proponent, Mr. Wilson, the court dismissed the contest for failure of proof. On appeal, this court held that such dismissal was error. We were of the opinion that contestants had established a prima facie case; that the evidence indicated that there existed between Mrs. Lobb and Mr. Wilson, at the time of the execution of the will and of the codicil, a confidential relationship; that Mrs. Lobb was susceptible to influence; and that Mr. Wilson participated actively in the preparation of the will. The existence of the confidential relationship, and the activity of Mr. Wilson in the premises, we felt, justified such an inference of undue influence as to impose upon him the burden of showing that in fact no such influence was used. We, therefore, remanded the cause for further proceedings. For a more detailed statement, we refer to our former opinion. (In re Lobb's Will, 173 Or. 414, 145 P. (2d) 808.)

Thereafter, a further hearing was had before the probate court, at which the proponent presented in his behalf the testimony of himself and of other witnesses. Thereafter, the court dismissed the contest, and contestants have appealed. The transcript of the additional testimony taken comprises some six hundred pages. All of this, besides numerous exhibits introduced both by proponent and by contestants we have painstakingly read and considered, and we have, moreover, in the light of the additional evidence, carefully reconsidered our original opinion.

While all of the evidence has been considered, in our opinion much of it was broadly irrelevant to the issues, and, for the purposes of this opinion, we confine ourselves to a statement of that which, in our judgment, had evidentiary force and probative value.

The evidence for proponent was as follows: Mr. Wilson testified that he had been a resident of Oregon since 1907. After coming to Oregon, he practiced law in Pendleton for five years, and since then has practiced in Portland. For about ten years, ending some time between 1925 and 1927, he was executive manager in Portland of Bankers' Discount Corporation. He first met Mrs. Lobb some time in 1934, when he represented a person who was anxious to buy some property in which she had an interest. Thereafter, in January, 1935, she consulted him with reference to effecting a sale of her Portland residence property. Subsequently, she sought his advice in relation to litigation in which she had become involved in California. He represented her in the collection of delinquent rental from her California property. After the California litigation was finally determined, she desired him to sell the California land for her, which he attempted to do. This was probably in 1938. An offer to purchase the property was received, but, against his advice, Mrs. Lobb refused it. The property was afterwards sold for delinquent taxes, but was later redeemed, and it was finally sold by Mrs. Lobb for considerably less than the first offer, on August 1, 1941. Between business contacts, Mr. Wilson had no social contacts with Mrs. Lobb. He never called on her except when she requested him to do so, and his communications with her were nearly always by correspondence. Some of the correspondence is in evidence and is unexceptionable in tenor. Mr. Wilson never suggested that Mrs. Lobb should invest her moneys in oil, mining stocks, or anything else. His...