In re Riggs' Estate

• Decision Date: 17 November 1925
• Citation: 120 Or. 38,241 P. 70
• Court: Oregon Supreme Court
• Parties: IN RE RIGGS' ESTATE. v. RIGGS ET AL. RIGGS

241 P. 70

120 Or. 38

IN RE RIGGS' ESTATE.

RIGGS v. RIGGS ET AL.

Supreme Court of Oregon

November 17, 1925

In Bank.

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

Application by Seth Riggs and others for probate of the will of Pierce Riggs, deceased. From a judgment in favor of contestant Ettie Mae Riggs, the proponents appeal. On motion to abate all proceedings ab initio. Motion overruled.

Pierce Riggs, husband of Ettie Mae Riggs, died in November, 1922 leaving an alleged will devising his property to his relatives to the exclusion of his wife, and naming Seth Riggs, his brother, Webb C. Lewis, his brother-in-law, and Cecil L. Riggs, his nephew, as executors. The will was presented for probate in common form and so admitted to probate November 15, 1922. On April 24, 1923, Ettie Mae Riggs, the widow of deceased, filed a petition for contest alleging undue influence upon the part of the relatives of the deceased, and also a lack of testamentary capacity on the part of the deceased to execute the will, and asked that the order admitting the will to probate be set aside, and that the petitioner be appointed administratrix of the estate of the deceased. The executors answered, alleging the validity of the will, and the matter went to trial before Hon. George Tazwell, judge of the probate department of the circuit court of Multnomah county, who found against the proponents and in favor of the contestant; the finding being that the execution of the alleged will was procured by fraud and by undue influence of the proponents exercised upon the deceased. There was no finding upon the issue of testamentary capacity. The appointment of the executors was revoked, and Mrs. Riggs was adjudged to be the sole heir of said deceased and appointed administratrix of his estate, and the former executors were required to account for all transactions by them as executors with reference to the estate, and to deliver to the administratrix all the assets thereof.

On January 14, 1924, the executors duly served and filed their notice of appeal and an undertaking for costs upon appeal but no stay or supersedeas bond of any character. Pending this appeal, Ettie Mae Riggs died in Multnomah county, Or., on the 7th day of May, 1925, leaving surviving her as sole heir, next of kin, and residuary legatee and devisee under her will, her father, Merton Elwood, who was appointed executor of Mrs. Riggs' will.

Flegel, Reynolds, Flegel & Smith and John K. Kollock, all of Portland, for appellants.

Wm. A. Carter, J. L. Hammersly, Franklin F. Korell, and MacCormac Snow, all of Portland, for respondent.

McBRIDE C.J. (after stating the facts as above).

The appellants now move the court for an order abating all proceedings ab initio, and that the circuit court of Multnomah county be directed to dismiss the proceeding in relation to the contest of the will; the theory being that the right to contest the will is personal and dies with the person who has such right, that there is no such property right in the contestant as can be bequeathed or pass to her heirs, and that no person can be said to be interested, within the meaning of the statute so as to permit a contest, who had not an...