In re Pittock's Will

• Decision Date: 26 July 1921
• Citation: 199 P. 633,102 Or. 159
• Parties: IN RE PITTOCK'S WILL. v. PRICE ET AL. LEADBETTER
• Court: Oregon Supreme Court

199 P. 633

102 Or. 159

IN RE PITTOCK'S WILL.

LEADBETTER v. PRICE ET AL.

Supreme Court of Oregon

July 26, 1921

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

Proceeding by Caroline P. Leadbetter against O. L. Price, as executor and O. L. Price and another, as trustees under the will of Henry L. Pittock, deceased, to contest the validity of the will. From a decree upholding the will, the petitioner appeals. Affirmed.

This is a proceeding to contest the validity of the will of Henry L Pittock, deceased, on the petition of his daughter, Caroline P. Leadbetter, in which the relief desired is to set aside annul, and cancel the testamentary document, with a view of distributing the estate according to the statute of descents as in a case of intestacy. The original petition stated the death of the deceased; that at the time thereof he was a resident and inhabitant of Multnomah county, Or., having real and personal property therein; gives the names and residences of the heirs; and avers that about February 17, 1919, a writing purporting to be his will was admitted to probate. The petition then goes on to allege that the will mentioned "should be set aside and annulled for the following reasons," among others these:

"(c) That said paper writing is void as a last will and testament, because the trustees therein named are vested with unrestricted and unlimited discretion as to whether they shall accumulate the income arising from the estate of said testator and keep intact the corpus thereof during the period of the trust purported to be created by said paper writing, or whether they shall sell the assets of said estate and make distribution thereof and of the income arising therefrom within the period of said alleged trust.

"(d) That said paper writing is void as a last will and testament, because it does not specify, with sufficient certainty, the beneficiaries of the trust therein purported to be created.

"(e) That said paper writing is void as a last will and testament because it is in contravention of the statutes of the state of Oregon and against public policy, particularly in that clause B of paragraph second thereof directs said trustees to vote the stock of the Oregonian Publishing Company, owned by said decedent at the time of his death in favor of themselves as directors of said company for the period of the trust purported to be created by said paper writing, to wit, 20 years."

The circuit court, in which this proceeding was instituted, on motion of the proponents of the will, struck out paragraphs (c), (d), (e), above quoted, whereupon the contestant filed an amended petition. The allegations about the death of the decedent, the heirs, and the presentation and admission to probate of the will are substantially the same as in the original pleading. It goes on to state with a wealth of verbiage that the trustees were intimately connected with the deceased as confidential advisers; that at the time of the execution of the will the decedent was 81 years of age; that the trustees named therein had acquired great influence over him; and that, conspiring, intending, and devising to secure large power, influence, emoluments, salaries, and commissions as executors of the last will and testament and as trustees of his estate, amounting approximately to $8,000,000, the individuals named as trustees so persuaded and overcame the will, free agency, volition, and judgment of the deceased that their will was substituted for his, and the paper mentioned, for the reasons foregoing, was not and did not represent the will of the decedent.

It is averred also, in substance, that the trustees and others to the petitioner unknown unduly influenced and induced the deceased to keep secret the fact that he had signed the paper. The resultant of all the allegations of the amended petition is concentrated in the eleventh paragraph thereof, reading thus:

"That said provisions of said will creating said trust and conveying to said O. L. Price and C. A. Morden all of the estate of decedent, and giving to said persons unrestricted and unlimited discretion as to the accumulation of the income arising from the estate of deceased, and keeping intact the corpus thereof during the period of 20 years as provided in said paper writing, or selling the assets of said estate and making distribution thereof and the income arising therefrom within said period of 20 years, and failing to specify with sufficient certainty the beneficiaries of said trust attempted to be created by said paper writing, and directing the said persons to vote for themselves during the period of said alleged trust and to elect and retain said C. A. Morden as manager of the Oregonian Publishing Company, are illegal and void, against public policy, and in contravention of the statutes of the state of Oregon."

It is alleged that the decedent was ignorant of the legal effect of the provisions of the will, and that he relied upon the representations of the trustees and did not seek independent advice; that he would not have executed the will or created the trust mentioned if he had known or been advised that the writing in the particulars mentioned, or in any of them, was illegal and void. The prayer is to the effect that the will be set aside and canceled and an administrator be appointed to take charge of the estate. A copy of the will is attached to the petition, marked Exhibit A, and reads as follows:

"Know all men, that I, Henry L. Pittock, of Portland, Multnomah county state of Oregon, of the age of 81 years, being of sound and disposing mind and memory, and not acting under duress, menace, fraud or undue influence of any person whomsoever, do make, publish and declare this my last will and testament in manner and form following, to wit:

"First It is my will and I do order that all my just debts and funeral expenses be duly paid and satisfied as soon as can conveniently be done after my decease.

"Second: In order to avoid, as far as possible, any loss or depreciation which might be caused by any sudden changes and to preserve my estate, I hereby give, devise and bequeath unto C. A. Morden and O. L. Price, both of Portland, Ore., all of my property, real, personal and mixed, of which I may die seized or to which I may be entitled, including property held in trust for me and after acquired property wheresoever the same may be located to be held by them in trust for a period of twenty (20) years from the date of my decease for the following purposes, to wit:

"A. The trustees shall have full and complete power and authority over my estate, they shall have full and complete possession and control of same, they shall keep the surplus funds invested in good securities. I grant unto them full power and authority to sell at public or private sale, as they may see fit, any of my property, except as herein otherwise provided, upon such terms and conditions as to them shall seem meet and for any purpose whatever; and I exonerate any purchaser from the necessity of seeing to the due application of the proceeds of sale, in making such sale said trustees shall not be obliged either to obtain the authority or consent or confirmation of any court therefor or thereof, either before or afterwards or to make any report thereof. They shall have power and authority to borrow money and bind my estate for the repayment thereof and to loan or advance money from my estate either with or without security when they shall deem it necessary for the protection of my estate. They shall have power to vote my stock in the various corporations at all meetings of the stockholders of such corporations and shall have all powers incident to the ownership of such stock.

"B. None of my stock in the Oregonian Publishing Company shall be sold, but shall be held intact during the entire period of this trust, I direct that my trustees shall vote said stock in favor of themselves as directors of said corporation, and it is my desire and I request that C. A. Morden shall be elected manager of the Oregonian and shall be retained as such, and that Edgar B. Piper shall be retained as managing editor of the Oregonian until he shall become incapacitated or until he may voluntarily resign.

"C. None of my stock in the Crown-Willamette Paper Company shall be sold, but shall be held intact during the entire period of this trust.

"D. None of my stock in the Northwestern National Bank of Portland, Oregon, shall be sold unless all of my stock in the Northwestern Fidelity Company shall also be sold at the same time, or unless all of my stock in the Northwestern Fidelity Company shall have been previously sold.

"E. My trustees shall pay to my wife, Georgiana M. Pittock, if she shall survive me, the sum of $1,000 monthly during her lifetime or until the termination of this trust. They shall also pay the sum of $500 monthly to each of my five children, namely: Susan Emery, Fred F. Pittock, Kate P. Hebard, Caroline P. Leadbetter and Louise Gantenbein, during their lifetime or until the termination of this trust; provided, that if any of my said children should not survive me or should die before the expiration of this trust, such amount as would otherwise have gone to such deceased child shall be paid to the then living heirs of the body of such deceased child by right of representation, and in the event such deceased child shall leave no living heirs of his or her body then the payment which would otherwise have gone to such deceased child shall cease upon the death of such child.

"F. When all of my debts and obligations shall have been paid or when a sufficient amount of cash shall be on hand to pay the same, I direct my trustees to pay semiannually thereafter fifty (50) per cent. of all cash on hand...