In re Sturtevant's Estate

• Decision Date: 21 January 1919
• Citation: 92 Or. 269,178 P. 192
• Court: Oregon Supreme Court
• Parties: IN RE STURTEVANT'S ESTATE. v. STURTEVANT ET AL. STURTEVANT ET AL.

178 P. 192

92 Or. 269

IN RE STURTEVANT'S ESTATE.

STURTEVANT ET AL. v. STURTEVANT ET AL.

Supreme Court of Oregon

January 21, 1919

In Banc.

Appeal from Circuit Court, Umatilla County; Dalton Biggs, Judge.

Proceedings by Mark Sturtevant and others to probate the will of Andrew J.9 Sturtevant, deceased. Contested by Vivian I. Sturtevant and others. From a decree setting the will aside, affirmed by the circuit court, proponents appeal. Reversed and remanded.

On July 18, 1914, the county court of Umatilla county took proof of a will of A. J. Sturtevant of date November 5, 1913, in common form, and admitted it to probate, appointing an executor and taking and approving his bond. On September 16th following two of the decedent's grandchildren, to whom his deceased son was father, appeared in the county court by their mother and guardian, Myrtle F. Carnes, to contest the validity of the will thus proved. After alleging their relationship and that of other persons named in the will to the decedent under their first cause of contest the contestants allege:

"That said Andrew J. Sturtevant at the date of his death was of the age of about 83 years, and that at the time of the execution of said pretended will, and for long prior thereto and until his death, he was not of sound or disposing mind or memory, and that in consequence of illness, both physical and mental, and in consequence of old age, and in consequence of paralysis long continued and other causes, his brain was diseased, his mind was seriously impaired, and his memory substantially destroyed and that at the date of said will, and for a long time prior thereto, and thereafter up to the time of his death the said Andrew J. Sturtevant was incapable of exercising any judgment over his property, or any other matter of importance, and was at the date of said will, and long prior thereto, and up to the time of his death, incapable of making a valid will.

"That these contestants are by the terms of said pretended will cut off with only $2.50 each, and are thus defrauded of their patrimony, and that respondents are the beneficiaries thereby and thereunder."

Their second charge reads thus:

"That at the date of said alleged will, and for a long time prior thereto, and thereafter up to the time of his death, the mental condition of said Andrew J. Sturtevant was such that he was easily persuaded in his course of conduct, and that said will was fraudulently obtained by undue influence exercised upon and over the said Andrew J. Sturtevant by respondent Mark A. Sturtevant and Alma Sturtevant, and perhaps other parties acting for them and in their interest, and that said will was not, and is not in truth or in fact, the will of said Andrew J. Sturtevant.

"That said pretended will was drawn from a memorandum in writing furnished to said Andrew J. Sturtevant by other persons to these contestants unknown, and that said Andrew J Sturtevant did not understand when said pretended will was executed that he was making a last will and testament, and that his mind was then and there so feeble and so unsound that he had no ability to distinguish between a last will and testament and a petition for the removal of a guardian."

It is also averred in the third place that:

"Andrew J. Sturtevant at the time of the execution of said pretended will, and for a long time prior thereto, and thereafter up to the date of his death, was a person adjudged by the courts of the state of Oregon to be incapable of conducting his own business, and was under guardianship, and that in truth and in fact said Andrew J. Sturtevant at the date of the execution of said alleged will, and for a long time prior thereto, and thereafter until the time of his death, was to all intents and purposes an insane person, and incapable of transacting any business of importance, and incapable of executing a last will and testament, and that said pretended will was not the product of his own free agency."

Lastly they said:

"That at the time of the execution of said alleged will, and for a long time prior thereto, and thereafter up to the time of his death, said Andrew J. Sturtevant was possessed of and influenced by a delusion, which delusion colored, molded, and affected all his actions, his attitude, and his sentiment toward these contestants, his grandchildren; that said delusion was a belief which he entertained that the father and mother of these contestants had a large amount of money belonging to him, the said Andrew J. Sturtevant, buried, and that the father of these children in his lifetime, and the mother of these children thereafter, was withholding from him, the said Andrew J. Sturtevant, a large amount of money belonging to him, and that said delusion caused these contestants, his grandchildren, to be substantially cut off from all benefits under said pretended will."

The matter in the contesting petition was traversed by Mark A. Sturtevant, the principal beneficiary, and by his wife and daughter Faye, who also took under the contested will.

Further answering the contestants' petition, the parties named made appropriate averments showing the establishment and probate of the will in question, and alleged that it was the last will and testament of A. J. Sturtevant, deceased. The new matter in the answer was controverted by the reply. The county court heard the testimony on the issues thus framed and set aside the will. Identical action was taken by the circuit court on appeal, and the proponents have appealed to this court.

James A. Fee, of Pendleton, for appellants.

Stephen A. Lowell, James H. Raley, and W. M. Peterson, all of Pendleton, and C. M. White, of Portland (Frederick Steiwer, of Pendleton, on the brief), for respondents.

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

It appears that A. J. Sturtevant, the deceased, was a merchant and landowner at Pilot Rock, in Umatilla county. By close attention to business through a series of years he had accumulated a fortune in excess of $40,000. He died on July 3, 1914. On September 27, 1910, on petition of his son Mark Sturtevant, the county court of Umatilla county made the following order:

"Now, on this day the duly verified petition of Mark Sturtevant and L. E. Roy, praying for the appointment of a guardian of the person and estate of A. J. Sturtevant, coming on to be heard; and it appearing to the court that the said A. J. Sturtevant is personally present in court, together with his attorney, Will M. Peterson, an attorney at law of this court, and that the said A. J. Sturtevant has this day filed an answer to the said petition with the clerk of this court in which he admits that there should be a guardian forthwith appointed to look after his person and estate, and suggesting that T. J. Tweedy, a resident of Pendleton, Umatilla county, Oregon, and an old acquaintance and friend, be appointed; and the court having fully considered the said petition and the answer thereto, and having personally talked with the said A. J. Sturtevant, and fully realizing the situation relative to his condition of mind and body, and the large estate which he owns, and being fully satisfied after a full hearing and consideration of all matters appertaining to the application for the appointment of a guardian, and being satisfied that a guardian of his person and estate should be forthwith appointed by this court,

"It is now therefore considered, ordered, adjudged, and decreed that A. J. Sturtevant is a person incapable of conducting his own affairs, and of properly caring for his health and general welfare; that a guardian of his person and estate should be forthwith appointed by this court; that T. J. Tweedy, a competent and qualified person, be, and he is hereby, appointed guardian of the person and estate of A. J. Sturtevant, and letters of guardianship shall issue out of this court to him as such upon his filing with the clerk of this court a bond with surety, first approved by this court, in the sum of five thousand ($5,000.00) dollars, conditioned as by law required."

At the time of his death the decedent was approximately 80 years of age. His wife died in 1910, prior to the appointment of his guardian. The aged couple had two sons, one of whom, Clark Sturtevant, died in 1906, leaving a widow, who three years afterwards married Owen Carnes. The deceased son also left two children, contestants here, Vivian Sturtevant, who died during the pendency of this proceeding, and a son, Lowell Sturtevant. The testator likewise had another son, Mark Sturtevant, the principal beneficiary in the contested will. By a former wife Mark had two sons, Clark and Andrew Sturtevant, and two daughters, Faye and Carrie Esther, each of the daughters being a beneficiary.

Mark Sturtevant married Alma, his present wife, in October, 1910. She was adjudged insane on January 30, 1915, and was not present at the hearing below.

Condensed to its lowest terms, the attack on the will in question is twofold: (1) That by reason of insanity the testator was incapable of making a valid will; and (2) that the disposition of his property embodied in the instrument in question was brought about by undue influence exercised over him by Mark Sturtevant and wife and others acting in their interest. It is true something is said about the testator's having been controlled by a delusion, but that is properly classified under the charge of insanity or want of testamentary capacity.

From the early case of Hubbard v. Hubbard, 7 Or. 42, to the present time the rule has been that where a will has been probated in common form, and its validity has been attacked by direct proceedings, it lies upon the person propounding the will to reprobate the same by original proof in the same manner as if no probate thereof...