In re Rupert's Estate

• Decision Date: 11 February 1936
• Parties: In re RUPERT'S ESTATE. [*] v. WATTERMAN et al. NASH et al.
• Court: Oregon Supreme Court

54 P.2d 274

152 Or. 649

In re RUPERT'S ESTATE. ^[*]

NASH et al. v. WATTERMAN et al.

Supreme Court of Oregon

February 11, 1936

Department 1.

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

In the matter of the estate of W. C. Rupert, deceased. Will contest by William S. Nash, individually and as executor of the estate of W. C. Rupert, who died July 27, 1934, aged 72 years, and others against C. C. Watterman, beneficiary, and Dr. E. D. Schmidt, principal beneficiary of contested will. From a decree of the circuit court holding that a document signed by W. C. Rupert, deceased, on July 19, 1934, was not his will, but that another document, signed by him on September 16, 1932, was his will and was entitled to probate and that when deceased signed the instrument of July 19 1934, he lacked testamentary capacity and was subject to undue influence, beneficiaries of contested will appeal.

Affirmed.

Frank Lonergan and W. E. Richardson, both of Portland, for appellants.

A. E Clark, of Portland (Clark & Clark and R. R. Bullivant, all of Portland, on brief), for respondents.

ROSSMAN Justice.

It is not claimed that W. C. Rupert lacked testamentary capacity or was subject to any improper influence on September 16, 1932 when he signed the will bearing that date. The beneficiary of that will is his nephew, Arthur A. Rupert, who was 39 years of age at the time of the trial, December, 1934. Dr. E. D. Schmidt, principal beneficiary of an alleged will signed July 19, 1934, contends that its execution revoked the will of September 16, 1932. Arthur A. Rupert, the nephew just mentioned, Charles Rupert, a brother of the decedent, residing in Chicago, and W. S. Nash, an attorney, who was nominated in the will of September 16, 1932, as executor, are the respondents, and allege that on July 19, 1934, Rupert lacked testamentary capacity and had been subject, over an extended period of time, to undue influence exerted by Dr. Schmidt for his own benefit. The circuit court sustained these contentions. We shall hereafter refer to Dr. Schmidt as the appellant, although he has been joined in the appeal with C. C. Watterman to whom a bequest of $200 was given in the alleged will of July 19, 1934. The aforementioned nephew and a brother are the decedent's only living relatives.

October 25, 1927, Rupert executed his first will. In it he bequeathed $5,000 to his brother Gus, who was then living in Chicago. The remainder of his estate he gave to his nephew Arthur, and nominated as executor the aforementioned W. S. Nash. This will became misplaced, and on December 18, 1931, Rupert signed a second will, identical in its terms with the one just mentioned. Later, Gus Rupert died, and on September 16, 1932, decedent executed the will already mentioned. It bequeaths his entire estate to his nephew Arthur, and, like the other two, nominates W. S. Nash as executor. The draftsman of all three wills was Mr. Nash. The draftsman of the alleged will of July 19, 1934, was Mr. W. E. Richardson, who is now one of the attorneys for the appellant. That instrument devises to one S. B. Finegan "my property located at 1060 High Street, Eugene, Oregon," bequeaths $200 to the aforementioned Watterman, and gives the remainder of the estate to the appellant. Although the title to the Eugene property was vested in the decedent, he held it merely as security for $3,500 due to him from Finegan. The residue of the estate which the appellant will receive, in the event the alleged will of July 19, 1934, is sustained, is worth from $16,000 to $18,000.

Until the decedent was approximately 40 years of age he resided in The Dalles and there developed friendships which he valued highly throughout the remaining years of his life. He then moved to Portland where he continued to live until death overtook him in his seventy-second year. He never married. More than one of the witnesses mentioned his immaculate attire, his well-fitting suits, his expensive shirts, his invariable custom of wearing a black derby hat and spats. He was a man fer those of a convivial character. Card playing was a principal source of recreation for him, and the record indicates that he frequently played for sizeable stakes.

In 1916 he met the aforementioned W. S. Nash, who soon became his attorney and confidential advisor. In 1917, Rupert and one A. Rohde purchased a Portland restaurant entitled the Oyster Loaf, and proceeded with its operation. This proved to be a very profitable venture, and about this time Rupert began making other investments. Feeling the need of some trustworthy person to relieve him of details, he brought his aforementioned nephew from Chicago in 1920. Arthur did not disappoint him, and many of the witnesses commented upon the cordial and friendly relationship which at once sprang up between uncle and nephew. The latter was at first paid a salary of $100 a month; it was later increased to $175. He lived with his uncle in a 2-room apartment, bearing a small portion of the expense. By 1931 the decedent had accumulated a fortune which Mr. Nash estimated as amounting to $100,000 or more. In 1926 Rupert constructed a house where both he and his nephew now made their home. Also residing there was one of the uncle's Eastern Oregon friends, a Mr. Farley, who brought with him his daughter as housekeeper. In November of 1930, the nephew married a young lady whom the uncle had known for several years and whom he regarded with affection. The young couple chose as their home an apartment a few blocks from the uncle's place. After the marriage the cordial relationship between uncle and nephew and the latter's wife continued. Rupert frequently went to the young folks' home for dinner, and the nephew's wife, as a friendly act, once a week cleaned the uncle's house. In the meantime, Farley had died, and his daughter had married.

The decedent, in December, 1931, when 70 years of age, suffered a severe apoplectic stroke which incapacitated his left side. The day previously Mrs. Rupert had been doctoring him for a severe cold and now returned to take charge of the patient. She summoned a physician, and shortly thereafter she and her husband moved into Rupert's home for the purpose of giving him better attention. A nurse was employed, and for approximately two months the decedent was bedridden. After he was able to leave his bed and get around with the use of a cane, Arthur's wife, to whom we shall hereafter refer as Mrs. Rupert, took him each afternoon to the Oyster Loaf where he was fond of eating dinner, and sometimes for visits to his oldtime friends.

About the middle of 1932, according to Mr. Nash, Rupert became greatly worried about his financial condition. For some time the Oyster Loaf, which was owned by a corporation of which the decedent owned 50 per cent. of the stock, was no longer earning dividends. In fact, it was incurring deficits. Some of the decedent's other investments had become valueless. To Mr. Nash Rupert expressed anxiety lest he become a charge upon his relatives. According to Mr. Nash, two of the larger restaurants of Portland at that time were in possession of receivers, and any of them were obtainable at any price offered. Rupert now importuned Mr. Nash to find a buyer for his interest in the Oyster Loaf, and, when results were not forthcoming, urged him to propose a sale to Arthur Rupert and Rohde's son George. A. Rohde by that time had died and his interest in the Oyster Loaf was now owned by George. At that time the decedent owned his original 50 shares, together with 19 shares which he had acquired from A. Rohde through the failure of the latter to discharge a loan. May 17, 1933, the sale of these 69 shares was consummated. The capitalization of the Oyster Loaf was $10,000, divided into 100 shares. The assets of the Oyster Loaf were entered upon its books as worth approximately $10,000. In a written contract signed on that day, Arthur agreed to purchase 50 shares for the sum of $5,000, payable at the rate of $100 per month. The instrument provided that in the event the uncle died before 50 $100 payments had been made, no further sums would be payable; but in the event the uncle continued to live after the 50 $100 payments were made, Arthur was required to pay his uncle $125 per month until his death. Mr. Nash testified that he suggested the provision just mentioned so as to assure the decedent an income for life. On the same day the 19 shares were sold to George Rohde at a price of $100 per share, payable in installments of $35 per month. Although the appellant argues that the uncle subsequently believed that Arthur had practiced deceit in the consummation of this transaction, this contention is virtually without foundation. To the contrary, reliable, substantial evidence indicates that the transaction was fairly consummated and was regarded by the uncle with distinct manifestations of satisfaction.

In the fall of 1932, the decedent, while visiting a friend in Tillamook, met the appellant who had shortly prior thereto undertaken the practice of his profession in that city. The appellant for some years had moved from place to place and had been engaged in various occupations, principally that of the practice of naturopathy. Success had not favored him, for he had no bank account, and the only property which he possessed in 1932, apart from his naturopathic equipment, was an automobile, the title to which was vested in his daughter's name, and which was taken from him in 1933 through his default in maintaining his purchase price payments. In January or February, 1933, the appellant, being dissatisfied with conditions in Tillamook, moved to Portland leaving unpaid several small accounts. He established his naturopathic equipment in a house at East Tenth and...