In re Newman's Will

• Decision Date: 04 January 1950
• Citation: 213 P.2d 137,187 Or. 641
• Parties: In re NEWMAN'S WILL. NEWMAN v. STOVER.
• Court: Oregon Supreme Court

213 P.2d 137

187 Or. 641

In re NEWMAN'S WILL.

NEWMAN v. STOVER.

Supreme Court of Oregon.

January 4, 1950

Argued Nov. 30, 1949.

Forrest E. Cooper, of Lakeview, argued the cause and filed briefs for appellant.

Herbert P Welch and Robert L. Welch, both of Lakeview, argued the cause and filed a brief for respondent.

Before LUSK, C. J and BRAND, BELT, ROSSMAN, and BAILEY, JJ.

BELT Justice.

This is a suit challenging the validity of an instrument purporting to be the last will and testament of Merica Newman, deceased, on the ground of mental incompetency and undue influence. The proceeding, instituted first in the County Court, was, by virtue of § 13-502, O.C.L.A., transferred to the Circuit Court for Lake County to be tried and determined. At the conclusion of the contestant's evidence, the trial court on motion of the proponent of the will, dismissed the suit with prejudice. From this order of dismissal the contestant appeals.

The motion for an 'involuntary nonsuit and for an order dismissing the petition' was on the ground that there was a 'total lack of proof showing any undue influence.' At the time this motion was made, defendant did not rest his case or indicate any intention to introduce additional evidence to contradict or explain the charge of the contestant that the will was the result of undue influence. The effect of such motion was to submit the cause on an incomplete record to the court for decision on its merits. A nonsuit, while serving a good purpose in law actions, has no place in equity practice. In law the jury is the exclusive judge of the facts. In equity the chancellor is the judge of both the law and the facts. On appeal from a judgment in a law action, this court does not weigh the evidence but determines whether there is any substantial evidence to support the judgment. On appeal from a decree in equity, the cause is tried de novo. Had the court denied the motion to dismiss, it is quite probable that the defendant would have offered evidence to refute the charge of undue influence. The defendant should not thus be permitted to try his case piecemeal. It is apparent that counsel for defendant intended to have the motion function as a demurrer to the evidence, but, nevertheless, the legal effect thereof was to submit the cause on plaintiff's evidence for decision on its merits. The trial court should have required defendant formally to close his case before considering the motion to dismiss. Rhode Island Hospital Trust Co. v. Gilleney, 61 R.I. 23, 199 A. 691; Sundlun v. Volpe, 62 R.I. 55, 2 A.2d 875; Id., 63 R.I. 441, 9 A.2d 41. As stated in 30 C.J.S., Equity, § 579, p. 972: 'Dismissing a bill at the close of plaintiff's case, before defendant presents or rests his case, is not correct practice in equity, in the absence of express provisions to the contrary. The case being set down for hearing on the bill, answer and proof, if defendant is willing to risk his case on plaintiff's proof or rather the failure of plaintiff to prove his case, he should submit the case to the court for final hearing, and if he is not so satisfied, he should present what proof he desires or may be able to present.'

Section 9-208, O.C.L.A., relative to a decree of dismissal provides: 'Whenever upon the trial it is determined that the plaintiff is not entitled to the relief claimed or any part thereof, a decree shall be given dismissing the suit, and such decree shall have the effect to bar another suit for the same cause or any part thereof, unless such determination be on account of a failure of proof on the part of the plaintiff, in which case the court may, on motion of such plaintiff, give such decree without prejudice to another suit by the plaintiff for the same cause or any part thereof.'

The above section of the statute comtemplates a full hearing on the merits before dismissing a suit in equity with prejudice. Roles v. Roles Shingle Co., 147 Or. 365, 31 P.2d 180. Ordinarily, it is bad practice in equity for a defendant to move for a dismissal at the conclusion of the plaintiff's case. In re Peters' Estate, 73 Colo. 271, 215 P. 128, 33 A.L.R. 24; Johnson v. Johnson, 313 Ill.App. 193, 39 N.E.2d 389; Laursen v. A. H. Memering & Co., 260 Ill.App. 515; Koebel v. Doyle, 256 Ill. 610, 100 N.E. 154; Shepard v. Shepard, 353 Mo. 1057, 186 S.W.2d 472; Stevens v. Trafton, 36 Mont. 520, 93 P. 810; Sundlun v. Volpe, supra; Kiss v. Gale, 187 Va. 667, 47 S.E.2d 353. In the light of the above authorities, the record is here for us to determine whether the Circuit Court at the conclusion of the contestant's case was warranted in finding that the evidence failed to show that the will in question was executed by reason of undue influence.

Having stated the question for decision, we will now consider the facts out of which this bitter and unfortunate controversy arose. On September 30, 1947, Merica Newman executed her will while she was living with her son, Richard Newman, on his Ranch about fifteen miles distant from Lakeview, Oregon. This will, which was signed in the presence of her attorney, Forrest E. Cooper, and his wife, Gladys, devised and bequeathed all of testatrix' property to her eight children, viz., Harry, Sam, John, Diamond, Ralph, Con and Richard, her sons, and Grace Smith, her daughter, share and share alike. The will provided that a 'gift' of $1,200 to Grace was to be deducted from her interest in the estate; a 'gift' of $419 to Diamond was likewise to be deducted from his interest; and the sum of $800 'advanced' to Sam was also to be deducted. Mr. Cooper, the attorney who prepared the will, testified that the decedent mentioned the trouble she was having collecting money from the above mentioned children and was particularly insistent that Diamond's share of her estate should be charged for the money loaned to him. The husband, John Newman, Sr., was not mentioned in the will. He and his wife had been estranged for many years but became reconciled shortly before her death. Richard, the contestant herein, was nominated as executor to serve without bond. At the time this will was executed, testatrix was a semi-invalid and 68 years of age. Mr. Cooper also testified without objection that when he consulted the decedent preparatory to drawing the will, she said that she was leaving everything to her son, Richard, and that she did not want three of her children to share in her estate, namely, Grace, Diamond and Sam. Mr. Cooper further testified that Richard convinced his mother that she ought to leave her estate to all members of the family and told her that if she did make such a will leaving all the property to him, he would divide it among the children and that 'she might as well do it herself and get the credit for it.' The validity of the will above mentioned is not at issue in this suit, but we have adverted to it for the purpose of showing the material difference between it and the will executed on October 15, 1947, the validity of which is challenged.

It is clear from the evidence that Richard was the favorite son. Throughout the years of decedent's illness, Richard paid the bills and looked after his mother. When she was suspected of having tuberculosis, Richard took her to Arizona for treatment and paid most of the expenses thereby incurred. Richard also paid the expense of his mother's trip to Tennessee where she was hospitalized.

Decedent's father died in Kentucky in November, 1929, and her brother fraudulently induced her to release her interest in the father's estate. Suit was filed in Kentucky to set aside such release, and Richard twice took his mother to that state for the purpose of prosecuting the case. This litigation extended over a period of fifteen years and was twice brought before the Supreme Court of Kentucky for decision before finally terminating in decedent's favor. Newman v. Hall, 278 Ky. 88, 128 S.W.2d 201, decided in May, 1939, and Newman v. Hall, 297 Ky. 537, 180 S.W.2d 390, decided in May, 1944. Richard advanced the money to carry on this litigation and was acting under a general power of attorney authorizing him to transact the business for his mother. It is evident that decedent had the utmost confidence in Richard and that this feeling existed to the very end of her life. The feeling, however, between Richard and the rest of the children, with the exception of his two brothers, Con and Harry, was very bitter. Trouble arose over the disposition of property which decedent acquired from her father's estate and over which Richard exercised control. It was claimed by some of the children that Richard converted to his own use large sums of money belonging to his mother.

On October 6, 1947 Richard, upon the advice of a doctor, took his mother from his ranch to a 'Rest Home' at Lakeview in order to secure better medical treatment for her. While the mother was at this 'Rest Home,' Diamond and Grace were almost constantly with her. As one witness expressed it, there were always some of the children 'on guard.' At this time decedent was greatly weakened in mind and body. She had a severe heart attack two or three days before the will in question was executed. In this will decedent devised and bequeathed all of her property to her children, share and share alike, with the exception of Richard, who was disinherited. Decedent thus expressed in her will the reason for disnheriting him: 'I have heretofore given him money and property which is at least equal to his share in my estate.' The fifth paragraph of the will provided: 'To my husband, John Newman, I give nothing.' Herbert Stover was nominated as executor and was referred to by the testatrix in her will as 'my friend,' although she had never met him. Stover, however, lived one mile from Richard's ranch, and it is entirely reasonable...