In re Phillips' Will

• Decision Date: 27 March 1923
• Citation: 107 Or. 612,213 P. 627
• Parties: IN RE PHILLIPS' WILL. v. STONE ET AL. TURNEY ET AL.
• Court: Oregon Supreme Court

213 P. 627

107 Or. 612

IN RE PHILLIPS' WILL.

TURNEY ET AL. v. STONE ET AL.

Supreme Court of Oregon

March 27, 1923

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Petition by William M. Stone, as executor, to probate the will of Rachel Phillips, deceased, contested by Rebecca Turney and others, wherein issue was joined by the Old Folks' Home and others. From a judgment adverse to contestants, they appeal. Affirmed.

This is a will contest. The testatrix, Rachel Phillips, died on May 1, 1920, at the age of 79 years, leaving an estate of the value of more than $26,000. She left surviving her the following next of kin and heirs at law, who are the contestants in this proceeding: John Bare, brother, age 88 years, residing at Smithfield, Pa.; Rebecca Turney, sister age 82 years, residing at West Linn, Or.; Justus Bare brother, age about 77 years, residing at Adah, Pa.; Louis Bare, brother, age about 72 years, residing at Dunbar, Pa Mary Riffle, sister, age about 70 years, residing at Messmore, Pa. The beneficiaries under the will involved herein are: Old Folks' Home, of Salem, Or.; First Baptist Church of Oregon City, Or.; and, Oregon State Normal School situate at Monmouth, Or.

On November 20, 1919, Rachel Phillips called to her home Wm. M Stone, her attorney, and requested him to prepare her will. He drew the will, and she executed it. Thereafter Mr. Stone concluded that the document had been defectively witnessed, and about three weeks later he rewrote it. The will, as redrafted, was formally executed on December 16, 1919.

On May 3, 1920, Wm. M. Stone filed his petition in the county court of the state of Oregon in and for Clackamas county for the probate of the will of the decedent, Rachel Phillips. On May 10, 1920, Hon. H. S. Anderson, county judge, after hearing proof concerning the execution of the will, made an order admitting it to probate, appointed Wm. M. Stone executor thereof, and ordered letters testamentary to be issued to him.

On September 4, 1920, John Bare, Rebecca Turney, Justus Bare, Louis Bare, and Mary Riffle, heirs of Rachel Phillips, deceased, instituted in the county court of Clackamas county, Or., a contest of the will. For ground of contest they aver the incompetency of Rachel Phillips to make a will. They allege:

That she was "old, infirm, and weak, and incapable mentally and physically, and incapacitated to make a will; that her mind, through bodily ailment and disease, at the time said purported will was signed, was so confused and weak that she was unable to recall or remember the names or number of her brothers and sisters, * * * to know what property or the amount thereof she possessed, or the kind thereof, * * * how to dispose of the same, or what she was doing, at the time said alleged will was signed."

The petition further avers:

That in signing the will she was not acting voluntarily, nor did she understand in whose favor the will was framed; "that the above petitioners herein, residing in Pennsylvania, have authorized and empowered Rebecca Turney, the petitioner who signs this petition, to file the same, to institute proceedings of contest herein, and to conduct the same in her and their behalf."

Issue was joined by the executor, the Old Folks' Home, and by the First Baptist Church of Oregon City. Trial was had and findings of fact were made as follows:

"* * * That at the time * * * Rachel Phillips made and executed her last will and testament * * * she was of sound mind and testamentary capacity, * * * and the same was executed as her free and voluntary act."

Thereafter the matter was heard in the circuit court upon appeal from the county court, and that court found that when Rachel Phillips made and executed her last will and testament "she was of sound and disposing mind and of testamentary capacity," and that the will "was executed as her free and voluntary act." As a conclusion of law, the court found that the proponents were entitled to a decree denying the petition of contestants, and directing that the executor proceed with the probate of the last will and testament of the deceased, Rachel Phillips.

The contestants appeal to this court, and assert that the decree and judgment sought to be reviewed are contrary to the evidence and the law.

Jos. E. Hedges and Gilbert L. Hedges, both of Oregon City, for appellants.

Wm. M. Stone and John W. Loder, both of Oregon City (Livy Stipp, of Oregon City, and W. C. Winslow, of Salem, on the brief), for respondents.

BROWN, J. (after stating the facts as above).

"Every person of twenty-one years of age and upwards, of sound mind may by last will, devise all his estate, real and personal. * * *" Or. L. § 10092. "Every person over the age of eighteen years, of sound mind, may, by last will, dispose of his goods and chattels." Or. L. § 10093. "Every will shall be in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will, in the presence of the testator." Or. L. § 10095.

Under the foregoing provisions of the statute, it was the right of the testatrix in the case at bar, if of sound mind, to dispose of her property as she chose and as expressed by her will, without regard to her recognition of any claims upon her bounty by her contesting relatives. Potter v. Jones, 20 Or. 239, 25 P. 769, 12 L. R. A. 161; Holman's Will, 42 Or. 345, 70 P. 908; Turner's Will, 51 Or. 7, 93 P. 461.

In Holman's Will, supra, the law of this state relative to the disposition of property is thus stated by Mr. Justice Wolverton:

"The right of one's absolute domination over his property is sacred and inviolable, so that he may do what he will with his own, if it is not to the injury of another. He may bestow it whithersoever he will and upon whomsoever he pleases, and this without regard to natural or legitimate claims upon his bounty; and if there exists no defect of donative capacity, whereby his individual will or judgment does not have intelligent and conscious play in the bestowal, or undue influence or fraud, whereby an unconscionable advantage may be taken of him through the wicked designs of another, the law will give effect to the disposition; and the right to dispose of one's property by will, and bestow it upon whomsoever he likes, is a most valuable incident to ownership, and does not depend upon its judicious use. [ Citations.] And this court has held, in effect, that 'while it seems harsh and cruel that a parent should disinherit one of his children and devise his property to others, or cut them all off and devise it to strangers, from some unworthy motive, yet so long as that motive, whether from pride or aversion or spite or prejudice, is not resolvable into mental perversion, no court can interfere.' Potter v. Jones, 20 Or. 239, 25 P. 769, 12 L. R. A. 161. To the same purpose is Hubbard v. Hubbard, 7 Or. 42; Clark's Heirs v. Ellis, 9 Or. 128; Chrisman v. Chrisman, 16 Or. 127, 18 P. 6; Darst's Will, 34 Or. 58, 54 P. 947."

The will in the case at issue has been criticized because the testatrix donated her property to charity instead of devising it to her next of kin and heirs at law.

The property belonged to the testatrix. She was a widow and childless. None of her relatives had helped Mrs. Phillips to earn her estate nor, so far as appears from the record, were any of her kin dependent upon her for their means of livelihood. It is true that her niece, Mrs. Farmer, had served her in different capacities prior to the execution of the will, for which testatrix said she had paid her the sum of $600. The testatrix considered that, if Mrs. Farmer had not been fully compensated for what she had done, she could file claims against her estate.

We will note while passing that Mrs. Farmer, subsequent to the execution of the will, rendered her aunt, the testatrix, great service, for which she has not been compensated. However, that does not supply a reason for holding the will to be invalid, as will be noted from the authorities hereinbefore referred to.

The pivotal point in this case is the testamentary capacity of Rachel Phillips.

Rachel Phillips was nearly 79 years old when she made her last will. Her body was weak. She suffered from physical ailments because of diseased organs. But none of these conditions rendered her incapable of disposing of her property by will. The law of this state, as announced by the rule adduced from the following decisions, is that if, from all the facts and circumstances, taken together, it satisfactorily appears that the testator, at the time of making his will, comprehends the nature of the act in which he is then engaged, knows the nature and extent of the property which makes up his estate and which he intends to dispose of, and has in mind the persons who are, should, or might be the objects of his bounty, and the scope and reach of the provisions of the written instrument, he has sufficient capacity to make a will: Hubbard v. Hubbard, 7 Or. 42; Clark's Heirs v. Ellis, 9 Or. 128; Chrisman v Chrisman, 16 Or. 127, 18 P. 6; Potter v. Jones, 20 Or. 239, 25 P. 769, 12 L. R. A. 161; Luper v. Werts, 19 Or. 122, 23 P. 850, 7 Am. Probate Rep. 243; Franke v. Shipley, 22 Or. 104, 29 P. 268; Rothrock v. Rothrock, 22 Or. 551, 30 P. 453; In re Cline's Will, 24 Or. 175, 33 P. 542, 41 Am. St. Rep. 851; Carnagie v. Diven, 31 Or. 366, 49 P. 891; Swank v. Swank, 37 Or. 439, 61 P. 846; Ames v. Ames, 40 Or. 495, 67 P. 737; Skinner's Will, 40 Or. 571, 62 P. 523, 67 P. 951; Buren's Will, 47 Or. 307, 83 P. 530; Pickett's Will, 49 Or. 127, 89 P. 377; Stevens v. Myers, 62 Or. 372, 121 P. 434, 126 P. 29; In re Hart's Will, 65 Or. 263, 132 P. 526; Wade v....