In re Turner's Will

• Decision Date: 28 January 1908
• Parties: In re TURNER'S WILL.
• Court: Oregon Supreme Court

93 P. 461

51 Or. 1

In re TURNER'S WILL.

Supreme Court of Oregon

January 28, 1908

Appeal from Circuit Court, Umatilla County; H.J. Bean, Judge.

Action by Alvin F. Turner and others against Oliver C. Turner and others to contest a will. Decree for proponents, and contestants appeal. Affirmed.

This is a proceeding instituted in the county court of Umatilla county to have the probate of the will of Cynthia A. Turner revoked and the will set aside. The will was executed October 7, 1901, and the testatrix died August 30, 1905. At the time of her death she left, surviving her, seven children and one grandchild. Her husband, and the father of these children died on May 26, 1898, leaving a will, in which, after bequeathing to each of his other children the sum of $50, he devised and bequeathed the remainder of his property consisting principally of a farm near Weston, to his youngest sons, Samuel O. and Oliver C., charged with the payment of one-third the rent therefrom to his wife, during her lifetime. These two sons were 26 and 28 years of age respectively, at the time of their father's death, and had, since their majority, lived with and assisted in the support of their parents. After the father's death, the eldest of them (Otis) resided on the farm which had been devised to himself and brother, and the youngest (Chauncey) lived with his mother in a house belonging to her in the town of Weston. About the 1st of October, 1901, Mrs. Turner was in poor health, and went to the hospital at Walla Walla for treatment. Chauncey accompanied her, and remained a day or two before returning home. After diagnosing her case, her physician, finding she was suffering from an ailment that would require a surgical operation, advised her to that effect, and at his suggestion she consented to submit to the same. A few days before the time fixed for the operation, she inquired of her physician if he thought she had better make a will, and he told her that she need feel no alarm as to the result of the operation, but thought it a good idea for every person to have a will. When her son Chauncey was advised of the day the operation was to be performed, he went from Weston to Walla Walla to see his mother, and to remain with her until after the operation. She told him to secure the services of an attorney to prepare her will, as she had concluded to make one. He tried to persuade her to abandon the idea, assuring her that she was in no danger from the contemplated operation, but she was persistent, and, after consulting her physician and being told by him that it could do no harm for his mother to make a will, he, accompanied by the physician, called on Judge Dumphy, a lawyer in Walla Walla, and requested him to prepare the will. Dumphy visited the hospital, obtained the necessary data from the testatrix returned to his office, prepared the will, and took it back to the hospital, where it was duly and regularly executed and witnessed, after which it was placed in a sealed envelope by Dumphy, and, at the request of the testatrix, taken by her son Chauncey to Weston, and deposited with her other papers in the local bank, where it remained until after her death some four years later. At the time of her death, Mrs. Turner owned and possessed a house and 4 1/2 lots in Weston, where she and her son Chauncey had resided for several years, of the probable value of $1,500; and personal property consisting principally of cash, amounting to about $4,000. After providing for the payment of her debts and funeral expenses, she declared, by the second clause of her will, her desire that the will and testament of her husband, deceased, should be executed and carried into effect, according to the terms and tenor thereof, and devised and bequeathed to her two sons, Otis and Chauncey, any interest in her husband's estate of which she might die seised. By the third clause she devised and bequeathed to her son Chauncey her home place in Weston, and all personal property of every kind and description situated and located in that town; and in the residuary clause gave the names of all her children and heirs, except Chauncey, and devised to them all the rest, residue, and remainder of her estate, both real and personal, share and share alike. The will was duly proved and admitted to probate in common form, September 5, 1905. A petition was filed in the county court for Umatilla county, June 20, 1906, by some of the heirs, praying for an order revoking the former probate and setting the will aside on the ground: (1) A want of testamentary capacity at the time it was executed, and (2) that it was induced by the fraud and undue influence of the chief beneficiary thereunder. After issue joined in the county court, testimony was taken, upon the consideration of which that court sustained the will and dismissed the petition. From this decree the contestants appealed to the circuit court, with like result, and they now bring the case to this court for final adjudication.

Charles H. Carter and Will M. Peterson, for appellant.

James A. Fee and G.W. Phelps, for respondents.

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

The averment that Mrs. Turner's mental and physical condition was such, at the time the will was executed, as to render her incapable of intelligently disposing of her property, has been abandoned by the contestants, and their sole reliance is upon the contention that the will was the result of the fraud and undue influence of her son Chauncey. The only witnesses who gave any definite or direct testimony concerning the making of the will and the circumstances surrounding its execution are Dr. Nelms, the attending physician, Chauncey Turner, chief legatee and devisee thereunder, and Judge Dumphy, who drew the will, and was present when it was executed. Dr. Nelms testified that while Mrs. Turner was in the hospital in Walla Walla, and after he had concluded that an operation was necessary she asked him if he thought she had better make a will, as she was afraid the operation was going to be serious; that witness told her that he did not want her to feel alarmed about the result of the operation, but thought it a good idea for all persons to have a will; that she asked him whom he would advise her to get to prepare the will, and he told her he thought Garrecht &amp Dumphy would...