In re Miller's Will

• Decision Date: 09 July 1907
• Citation: 49 Or. 452,90 P. 1002
• Parties: In re MILLER'S WILL.
• Court: Oregon Supreme Court

90 P. 1002

49 Or. 452

In re MILLER'S WILL.

Supreme Court of Oregon

July 9, 1907

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Application by Edward Luis for the probate of the lost will of Ferena Miller. From a decree for proponent, contestant, Jacob Muhrback, appeals. Affirmed.

This was a proceeding in the county court of Union county, Or for the purpose of proving an alleged lost will of Ferena Miller, who died in that county November 19, 1900. The petition for probate was filed by Edward Luis July 13, 1903 alleging that Ferena Miller died on the date and in the county mentioned, leaving a large estate therein, consisting of both real and personal property, with no lineal descendents surviving her; that the petitioner and his sister, Clara Luis, had made their home with decedent from their infancy, with the understanding that they should inherit all of the Miller property; that a will was executed bequeathing to the petitioner all of the personal property together with the 40 acres of land, upon which the dwelling and all other buildings were situated, and to him and his sister, Clara, share and share alike, all the remaining real property; that the land bequeathed to him is the N.W. 1/4 of the N.W. 1/4 of the section 29, with appurtenances, and the property devised to them jointly consists of the E. 1/2 of section 19, W. 1/2 of S.W. 1/4, S.E. 1/4 of S.W. 1/4 of S.E 1/4 of section 20, N.E. 1/4 of N.W. 1/4 and N.W. 1/4 of N.E. 1/4 of section 29, all in township 5 S., range 39 E., W.M. in Union county, Or.; that immediately after its execution the will referred to was deposited and left for safekeeping either with N. Tartar, since deceased, or with the First National Bank of Union, Or., but has been lost, and after diligent search cannot be found. Evidence was offered in support of the petition, resulting in an order being made by the county court to the effect that the will be admitted to probate. On July 7, 1904, Jacob Muhrback, as contestant, filed a petition with the county court, praying that Luis be cited to appear and show cause why the order entered sustaining his petition should not be vacated, alleging that Ferena Miller died intestate, leaving no one capable of inheriting her estate, except contestant; that contestant is a brother of decedent, and that all her property descended to, and is inherited by, him under the laws. of Oregon; that he is informed and believes that Luis, under an alleged will, claims to have succeeded to all the property of which she died seised, but, if such will was executed, it was revoked. Luis answered, admitting the residence and death of the decedent, and that she left no lineal descendents, but denied the other allegations. The cause, being at issue, was referred to H.R. Hanna as special referee for the purpose of taking the testimony therein, which was thereafter taken and reported to the court, after which (August 13, 1906) the county court set aside its former order, from which action an appeal was taken by proponent. The circuit court, on appeal, reversed the decree of the county court, sustained the allegations of the petition for probate, and decreed the legatees to be the owners, under the will, of the property alleged to have been bequeathed to each, as above described. From this decree, Muhrback appeals.

C.E. Cochran, for appellant.

L.J. Davis, for respondent.

KING, C. (after stating the facts).

The evidence discloses that in the year 1864 Adam Miller, with his wife, Ferena Miller, settled upon what is known as Catherine creek, in Union county, in this state, later removing to Clover creek in that vicinity, where they afterwards continuously resided. Adam Miller died June 26 1886, but his wife lived until November 19, 1900. Prior to the death of Adam Miller, being without children, they took into their home Edward Luis and his sister, Clara, the oldest of whom was about nine years of age, the boy being a nephew and the girl a niece of Mrs. Miller. Some time prior to 1886 an effort was made to adopt Edward, resulting in a failure on account of an irregularity in the proceedings, which oversight was not discovered until steps were taken to administer upon Adam Miller's estate. The children, however, continued their home with Mrs. Miller until of age, after which Clara married one Geo. A. Aughey but Edward remained on the farm, devoting his full time and labor in its improvement. At all times after being taken into the Miller home, both he and his sister were treated as members of the family, and were recognized by the people in that vicinity as such. On the death of her husband Ferena Miller succeeded to all his estate. A few years afterwards she executed a will, in which Edward and Clara Luis were made her beneficiaries to share equally in all her property. A few years later, and after Clara married, this will was destroyed and revoked. After considerable delay she made a new will, being the one involved here. This will was executed in the office of C.H. Marsh, an attorney in Union, and witnessed by him and one Mrs. A.M. Tartar, who resided there. Before being signed, it was read in the presence of the witnesses to Mrs. Miller, who, after hearing it read, stated that the will was as she wanted it, and that it was her last will and testament. Marsh then inclosed the will in an envelope and delivered it to the testatrix, who, in company with Mrs. Tartar, went to the First National Bank of that place, and handed the envelope with will inclosed to "Will Wright," the cashier, who, after having her indorse instructions thereon, retained it for safekeeping. Under our Code (B. & C. Comp. § 791) a will must be in writing, except when made by a soldier or mariner in active service, but, when in writing, secondary evidence is admissible to show its contents. Like any other written instrument, when shown to have been lost, it may be established on proof of such loss, the burden of which is on the proponent, and its execution must be clearly established, but, when this is done, it may be admitted to probate unless shown to have been revoked. 16 Enc.Pld. & Pr. 1065; 23 Enc.L. (2d Ed.) 147; Wallis v. Wallis, 114 Mass. 510; Harris v. Harris, 26 N.Y. 433. Contestant insists that the will was destroyed and accordingly revoked by the testatrix, but this charge proponent denies, asserting that it was never withdrawn from the bank. On this issue the result of this suit depends.

If, when last seen, the will is shown to have been in the possession of the testatrix, and cannot be found, it must be presumed, in the absence of other evidence, that she destroyed it. 23 Am. & Eng.Enc.Law (2d Ed.) 148; Collyer v. Collyer, 110 N.Y. 481, 18 N.E. 110, 6 Am.St.Rep. 405; Behrens v. Behrens, 47 Ohio St. 323, 25 N.E. 209, 21 Am.St.Rep 820. But, under our view of the evidence, the possession of the will is shown to have been intrusted to a third person, the bank, as a depositary. The burden, therefore, of retracing it into the hands of the testatrix is upon the contestant. Especially is this true when shown that within a short time before her death declarations were made by decedent to the effect that the will was still in existence and in the bank, after which she could not have had access to it. Thornton on Lost Wills, § 62; Schultz v. Schultz, 35 N.Y. 653, 91 Am.Dec. 88; Dawson v. Smith, 3 Houst. (Del.) 335; In re Harris' Estate, 10 Wash. 555, 39 P. 148. It is conceded that the will, after being properly executed, was taken from the attorney's office by Mrs. Miller in company with Mrs. Tartar. As to what was afterwards done with it there is some controversy. Mrs. Tartar, a disinterested witness, testifies that, as soon as the will was executed, it was taken to the First National Bank of Union, Or., and there delivered to "Will Wright," cashier; that she was present, heard the conversation between them, and saw the envelope with will inclosed turned over to him; that no other persons were present at the time; that she and Mrs. Miller were very intimate friends; that Mrs. Miller was at that time visiting with her in Union; that decedent had previously made a will, appointing "Mr. Dobbs" administrator, but claimed to be dissatisfied with it, and said that there was some little disturbance when she made it; that she saw her destroy this first will by throwing it into the stove, saying at the time: " 'Some of these days when the weather is good you go with me and I will make a new one,' which I [Mrs. Tartar] concluded to do"; and that the will here in question was thereafter executed and left in the bank as stated.

It is insisted that this testimony is inconsistent with one of the statements of the witness on cross-examination, when, in answer to an inquiry as to whether she knew what became of the last will, she stated: "A. I could not tell you that. She took it home to Clover creek, 16 miles from here and took sick and had her hip out of joint, and I never was up there since. Q. Was she ever back to your residence at any time after this will was put in the bank? A. Oh, yes, yes. She was here once and I can't tell. I thought she was out of humor, and she had a little valise with her, where she generally carried papers, and she didn't talk to me anything about it. I don't know what she had in the valise. She went to town. She was mad over something. Clara was here and Ed was here, and she went to town. She was in the house with me awhile and then took the valise and went off, and I always believed in my own mind she took the will out of the bank, because she said Ed and Clara told her to take that will out of the bank--'that somebody might get it and cause you a great deal of trouble and get everything you have got.' 'Well,' I says, 'a person wouldn't have common sense that would speculate...