Suit by
Mattie V. Wayne against Lenna Huber, individually and as
executrix of the estate of Charles E. Wayne, deceased, to
obtain a decree vacating an order admitting the will of
Charles E. Wayne, deceased, to probate. Decree for
contestant, and proponent appeals.
Reversed
and decree set aside.
This is
a will contest instituted by Mattie V. Wayne, widow and sole
heir at law of Chas. E. Wayne, the testator, who died on
August 15, 1928, in Multnomah county, Or., the place of his
habitation, possessed of an estate consisting of real and
personal property of the appraised value of $118,047.46. On
August 23, 1928, the will was admitted to probate in common
form, and Lenna Huber, the person therein named as executrix
was so appointed, and in due time qualified as such executrix
and entered upon the discharge of her duties. On March 18
1929, Mattie V. Wayne filed her petition for the purpose of
contesting the will, alleging, among other things, that--
"Said
pretended will is not and never was the real and true last
will and testament of said decedent, because at the time of
the execution thereof and for a long time prior thereto
decedent was, in the matter of the testamentary disposition
of his property and estate, controlled and dominated by said
Lenna Huber (and Ada Sharp acting under her direction and in
her behalf), and actuated by and acting under her
misrepresentations and undue influence, and because said
Lenna Huber alienated the affections of said decedent from
your petitioner through false statements and
misrepresentations to him of and concerning your petitioner
in and by which misconduct a lack of affection for said
decedent was imputed to your petitioner, and thereby so
prejudiced your petitioner with said decedent and so poisoned
his mind against your petitioner, and created such a state of
mind on his part toward your petitioner, that he was induced
and persuaded and procured by said Lenna Huber to execute
said pretended will in and by which it was undertaken to
deprive your petitioner of any share or interest whatever in
her husband's property and estate upon his death, and to
transfer and vest all thereof to and in said Lenna Huber.
"In
the making and executing of said will said Lenna Huber so
dominated and unduly influenced the mind and will of said
decedent as to substitute her will and wish for his to such
an extent as to cause decedent in the making of said will to
breach * * * a contract theretofore made by and between your
petitioner and decedent. * * *"
She
prayed for an order of the court citing "Lenna Huber
and said Lenna Huber as executrix of said estate, to appear
before this court * * * and show cause * * * why said order
admitting said will to probate, and all subsequent orders in
the administration of said decedent's estate, should not
be vacated, * * * and a decree be entered herein to the
effect that said pretended will is not the true will of said
decedent," and for such other and further relief as
might be meet and equitable in the premises.
Lenna
Huber, appearing, filed an answer denying the allegations
charging her with the exercise of undue influence. For a
first further and separate answer and defense to the
contestant's petition, and by way of petition to have the
will established as the last will of Charles E. Wayne, after
setting forth the necessary allegations to entitle the will
to probate, she alleged, among other things:
"That
on or about July 15, 1927, the contestant, without cause,
left and abandoned the deceased and his home, and commenced
a suit for divorce against the decedent in the Circuit
Court of the State of Oregon for Multnomah County, the said
suit bearing registry number M-3544, and, in said suit and
by her communications with others and her acts and conduct,
the contestant grievously wounded the feelings of the
deceased and publicly humiliated him, and subjected him to
public shame, ridicule and disgrace."
The
contestant replied to the new matter, and, upon joinder of
issue, testimony was adduced which resulted in a decree that
the will was of no effect, and that it was not the last will
and testament of Charles E. Wayne, deceased. It was further
directed that the order admitting that written instrument to
be the last will and testament of Charles E. Wayne be set
aside and revoked, and that all subsequent orders in the
administration of the estate of Charles E. Wayne, deceased,
be annulled, that Lenna Huber be removed as the executrix of
the estate, and that contestant be appointed administratrix
of the said estate upon filing a good and sufficient bond
therefor. From this decree, Lenna Huber, individually and as
executrix of the last will and testament of Charles E. Wayne,
appeals.
W. Lair Thompson and Lawrence A. McNary, both of
Portland (Lawrence A. McNary, McCamant & Thompson, Ralph H.
King, and Edward J. Clark, all of Portland, on the brief),
for appellant.
John W.
Kaste, of Portland (C. T. Haas and Barge E. Leonard, both of
Portland, on the brief), for respondent.
BROWN,
J. (after stating the facts as above).
The
will reads as follows:
"Know
all men by these presents, that I. Charles E. Wayne, of
Portland, Multnomah County, Oregon, being of sound and
disposing mind and memory, do make, publish and declare the
following as my Last Will and Testament, hereby revoking
all former wills by me made; that is to say:
"First:
I direct that all my just debts be paid.
"Second:
I direct that I be buried in the I. O. O. F. cemetery near
Fort Jones, Siskiyou County, California, beside the body of
my former beloved wife, Nellie Carlock Wayne; that my name
be engraved on the tombstone beside that of my said former
wife, and that a headstone be placed at my grave similar to
that on hers.
"Third:
I give and bequeath to my friend, Nellie K. Mathews, of
Yreka, California, the sum of five hundred dollars, to be
paid to her mother, Katherine Mathews, of the same place,
and to be used at said mother's discretion for the
education of said Nellie K. Mathews.
"Fourth:
I give and bequeath to my friend. Anna W. Cowan, of
Sacramento, California, all money owing to me by her at the
time of my death, if any.
"Fifth:
I give and bequeath to my friend, Winnifred Carlock, cousin
of my beloved former wife, Nellie Carlock Wayne, the sum of
five hundred dollars, in trust nevertheless,
without bonds, to be used as she sees fit for the education
of her son, Leslie Edward Carlock.
"Sixth:
I give and bequeath to the Fort Jones Lodge, No. 115,
Independent Order of Odd Fellows, at Fort Jones, Siskiyou
County,
California, the sum of one thousand dollars, in trust
nevertheless, to be invested in safe security and to the
best advantage by said lodge, and the interest accruing
thereon to be expended by said lodge in keeping in good
condition and repair the Adam B. Carlock lot in what is
known as the I. O. O. F. cemetery near Fort Jones where my
said beloved first wife is buried, the said Adam B.
Carlock, my father-in-law, having been a charter member of
said Fort Jones I. O. O. F. lodge, and I direct that said
interest and income from said bequest be used to keep said
lot in good repair, the rodent holes, if any, filled, and
otherwise kept in presentable condition, and for flowers to
be placed upon the graves in said lot each and every
Memorial Day in May.
"Seventh:
I give and bequeath to my wife, Mattie V. Wayne, the sum of
four thousand dollars, which shall be taken, received and
accepted by her in lieu of her dower interest in my estate,
and in the event that she shall not accept the said bequest
in lieu of her dower, then the same shall go to my
residuary legatee and devisee.
"Eighth:
I hereby certify and declare that I have no child born or
unborn, or children living, and if any person claims to be
my child, and makes proof of such relationship, I give and
bequeath to such person or persons the sum of five dollars
each.
"Ninth:
It is my will that if any person, or any legatee under this
will, shall contest the validity of this will, or any of
its provisions, such person or persons shall forfeit the
right to any legacy under the will, and to all interest
whatever in my estate.
"Tenth:
All the rest, residue and remainder of the property of
which I die possessed, whether real, personal or mixed, I
give, bequeath and devise to my niece, Mrs.
Lenna Huber, of 998 E. 15th Street North, Portland, Oregon,
and I appoint my said niece executrix of this my Last Will
and Testament, and direct that she be authorized to act as
such without bond.
"In
witness whereof, I have hereunto set my hand and seal this
22nd day of December, 1927.
"[Signed] Charles E. Wayne [Seal.]
"The
above instrument was signed, sealed and declared by the said
testator, said will consisting of this and one other page,
Page 2 of Will signed 'Charles E. Wayne,' to be his
Last Will and Testament, in our presence, who at his request,
and in his presence, and in the presence of each other, have
subscribed our names as witnesses hereto.
"[Signed.] Edgar M. Adams,
"Residing at Portland, Oregon.
"[Signed.] Irwin R. Miller,
"Residing at Portland, Oregon."
The
contestant grounds her petition upon the alleged undue
influence exercised by Lenna Huber, the testator's niece
and principal beneficiary under his will, in the matter of
the testamentary disposition of his property. She asserts
that the will is not the will of Charles E. Wayne, but that
it is the product of the mind of Lenna Huber, and that Wayne
in fact died intestate.
The law
casts upon a litigant alleging undue influence the burden of
proving it. II...
