In re Walther's Estate

• Decision Date: 06 November 1945
• Citation: 163 P.2d 285,177 Or. 382
• Parties: IN RE WALTHER'S ESTATE ZENGER ET AL. <I>v.</I> WYSS
• Court: Oregon Supreme Court

177 Or. 382

163 P.2d 285

IN RE WALTHER'S ESTATE ZENGER ET AL.v.

WYSS

Supreme Court of Oregon.

Argued October 9, 1945.

Affirmed November 6, 1945.

Wills

1. A testator must be able to understand the nature of the act in which he is engaged, the kind and extent of his property, and the claims of those who are the natural objects of his bounty.

Wills

2. The testator's mind must be able to apprehend without prompting who are the natural objects of his bounty.

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3. A testator is not required to have a high degree of mentality, and, if he comprehends the nature of the business in which he is engaged, his testamentary capacity is not necessarily impaired merely by reason of old age, debility and sickness.

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4. One who claims that an insane person executed a will during a lucid interval has the burden of establishing such claim.

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5. Evidence in will contest showed that testatrix was sane when she executed her will.

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6. Where a will is unnatural in its terms and favors one who occupied a relationship of special confidence to the testator, slight evidence of undue influence is sufficient to invalidate it.

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7. Persons who were testatrix' next of kin were "natural objects of her bounty".

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8. A will was not "unnatural" merely because testatrix preferred one with whom she had been in close and affectionate relationship for many years over testatrix' next of kin.

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9. Insane delusions which do not touch the subject matter of a will do not affect the testamentary capacity of the testator.

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10. In the law of wills "insane delusions" are conceptions that originate spontaneously in the mind without evidence of any kind to support them.

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11. Evidence showed that testatrix' suspicions of two of her next of kin were unjust and that testratrix' feeling that such persons had turned against her and were after her money was a delusion based upon a misinterpretation of the facts, but that such delusion was not so extravagant as to indicate that it was the product of a deranged mind.

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12. One of sound mind has a right to dispose of his property without regard to the expectations or deserts of next of kin.

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13. As respects testatrix' mental competency at the time of executing a will, the testimony of subscribing witnesses, aided by the presumption of sanity which follows proof of due execution, is entitled to great weight.

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14. Evidence showed that testatrix was mentally competent at the time she executed will.

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15. Where there was no evidence that beneficiary induced or procured the making of the will, his fortuitous presence at execution of the will raised no presumption of undue influence.

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16. In will contest, the conclusions of experienced trial judge, who saw and heard the witnesses, as expressed in memorandum opinion, were important as respects conflicting testimony.

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17. Evidence showed that testatrix was of sufficient mental capacity to dispose of her property by will and that she executed disputed will freely and comprehendingly without undue influence on part of beneficiary.

                  Presumption and burden of proof as to undue influence on
                testator, note, 66 A.L.R. 228
                  68 C.J., Wills, § 26
                

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Tillamook County.

R. FRANK PETERS, Judge.

Proceedings in the matter of the estate of Margaret Walther, deceased, wherein Johanna Zenger, Caroline E. Brande, and Henry Theony and others were contestants, and Ulrich Wyss, individually and as executor of the estate of Margaret Walther, deceased, was a party. From a judgment disallowing the contest, the named contestants appeal.

AFFIRMED.

Nicholas Jaureguy, of Portland (Cake, Jaureguy & Tooze, of Portland, on the brief), for appellants.

George P. Winslow, of Tillamook, for respondent.

HAY, J.

About the beginning of the present century, Otto Walther and his wife Margret established a home upon a tract of 160 acres of logged-over land in Tillamook County, Oregon, which they developed into a dairy farm. There they spent the remainder of their lives. They became well-known and respected members of the Tillamook community. Having no children of their own, they took into their home (probably in the year 1905) the respondent, Ulrich Wyss, who was then about seven years old, and had been bereaved of both parents. He lived with them until he was about fourteen, when he ran away and was absent about seven years. At the age of twenty-one he returned, and worked for the Walthers as hired man until Mr. Walther's death in 1929. Thereafter, until Mrs. Walther's death, he operated the farm under an arrangement whereby Mrs. Walther and he shared the profits equally. He gave his whole time to the business and his efforts resulted in a considerable improvement of the farm. He never married. He habitually spent his leisure time at home and his relationship with Mrs. Walther, who was some thirty-five years his senior, was almost filial.

In 1931, Mrs. Walther made a will, by which she devised and bequeathed the farm, with the livestock and other farm personalty, worth about $12,000, to Wyss, but subject to the charge of a specific bequest of $2,000 to Johanna Zenger, one of her nieces and a contestant herein. The residue of her estate, of the value of over $6,000, she bequeathed, in equal shares, to her brother, Henry Thoeny, and her sisters, Katherina Zenger and Amalie Walther.

On July 7, 1942, Mrs. Walther suffered some sort of cerebral injury, referred to by the lay witnesses as a "stroke". She was removed from her home to Tillamook General Hospital, where she was confined for some two weeks. Thereafter, she was returned to her home, stayed there five days, and was again received into the hospital, remaining there one week. Arrangements were then made whereby she was placed in the care of Mrs. Rose Jacobs, a sister of Ulrich Wyss, who took Mrs. Walther into her home, where Mrs. Walther stayed until her death on March 3, 1943, at the age of eighty-one years. Mrs. Jacobs was paid for her services.

On August 26, 1942, at Mrs. Jacobs' home, Mrs. Walther executed the will which is the subject of the present litigation. Under this will, Ulrich Wyss became the sole beneficiary. In the time intervening between the making of the two wills, the residuary legatees under the 1931 will died. The 1942 will was admitted to probate in common form on March 26, 1943, and thereafter these contest proceedings were instituted. The contestants are children of one or other of the residuary legatees under the former will. The grounds of contest alleged are (1) mental incompetency of the testatrix, and (2) undue influence exerted over her by the beneficiary, Ulrich Wyss. After a hearing, the circuit court disallowed the contest, and contestants have appealed.

1, 2. Every person of twenty-one years of age and upward, of sound mind, is permitted by law to dispose of his property by will, with certain restrictions not applicable to the present case. Section 18-101, O.C.L.A., as amended by chapter 136, Oregon Laws 1941. The requirements of sound-mindedness or mental competency in this connection have been stated frequently by this court. The testator must be able to understand the nature of the act in which he is engaged, the kind and extent of his property, and the claims of those who are the natural objects of his bounty. In re Dougan's Estate, 152 Or. 235, 53 P. (2d) 511; Clark v. Clark, 125 Or. 333, 267 P. 534; In re Phillips' Will, 107 Or. 612, 213 P. 627. His mind should apprehend, without prompting, who are the natural objects of his bounty. In re Sturtevant's Estate, 92 Or. 269, 178 P. 192, 180 P. 595. See also Mason v. Bowen, 122 Ark. 407, 183 S.W. 973, Ann. Cas. 1917D, 713; Kleinlein v. Krauss, (Mo.) 209 S.W. 933; In re Heaton's Will, 224 N.Y. 22, 120 N.E. 83; In re Latto's Estate, 129 Minn. 248, 152 N.W. 541.

The evidence established clearly the fact that two of the contestants, Johanna Zenger and Caroline Brande, had maintained cordial relationships with Mrs. Walther over a period of many years. Miss Zenger, particularly, was very friendly with her aunt, visited her frequently, and was undoubtedly her favorite relative. Mrs. Walther gave instructions that, in case she became ill, Miss Zenger should be called immediately and, when she was stricken, this was done. Miss Zenger, who resided and was employed in Portland, thereupon procured leave of absence from her employer, and went immediately to Tillamook, where she remained constantly with Mrs. Walther until about ten days after her removal to the Jacobs home. Thereafter, she visited Mrs. Walther not less than once every fortnight.

During the first two weeks of her confinement in the hospital, Mrs. Walther was, for the most part, in a state of mental confusion. There were periods, however, when she appeared to be rational. After she was removed to her home, Miss Zenger testified that Mrs. Walther continued to talk about going home. Some of the lay witnesses testified that she suffered from hallucinations. For example, she imagined at times she was on the floor and was unable to get up; that people were throwing dead fish into her yard, and that she was surrounded by dead fish; that people were tearing down her house, and that some one had taken her cookstove. While in the Jacobs home, according to the witnesses for the contestants. Mrs. Walther continued to have these hallucinations. Sometimes she failed to recognize friends when they came to call on her and occasionally she even failed to recognize Miss Zenger and Mrs. Brande. Miss Zenger said that she threatened to throw herself out of bed whenever her wants were not attended to immediately, and that once or twice she did so.

While Mrs. Walther was being cared for in the hospital, she was given hypodermic injections of small doses of morphine occasionally to alleviate pain and as a...