Luper v. Werts

• Decision Date: 14 April 1890
• Citation: 23 P. 850,19 Or. 122
• Parties: LUPER v. WERTS et al.
• Court: Oregon Supreme Court

23 P. 850

19 Or. 122

LUPER v. WERTS et al.

Supreme Court of Oregon

April 14, 1890

Appeal from a decree of the circuit court for the county of Linn reversing a decree of the county court of said county rendered in a matter of probate of the alleged will of Martin Werts, deceased. The said Martin Werts died in said county of Linn on the 30th day of September, 1888. The deceased at the time of his death, was an inhabitant of said county, and left real and personal property owned and possessed by him in his life-time, and left an instrument of writing, in the form of a will and testament, which purported to dispose of said property. On the 15th day of October, 1888, the said instrument of writing, by order of the said county court, was admitted to probate, in the common form, as the last will and testament of the deceased. Thereafter, and on the 3d day of November, 1888, the appellant, Sarah L. Luper, filed in said county court a petition to vacate the order admitting said will to probate, alleging in her said petition that she was the daughter and only heir at law of the deceased, except the widow of deceased, Mary Werts, and that the pretended will was void in that the testator did not make, sign, or declare in the presence of the witnesses to said instrument, that the same was his last will and testament, nor was the same attested by such witnesses; that the said testator was not at the time of signing said instrument, of sound mind and memory; and that he was induced to sign the same by undue influence exerted over him by said Mary Werts and others named as legatees and devisees therein. An answer was filed to the said petition by the respondents, the administrators with the will annexed of the deceased, denying the allegations thereof as to the unsoundness of mind and memory of the deceased, as to the undue influence, and as to the will not having been properly attested by the witnesses. A large amount of testimony was taken on both sides bearing upon the said issues, and upon which the said county court decreed that the said order admitting the will to probate be revoked and the said will set aside, upon the ground that the same had not been duly attested; from which decree the respondents took an appeal to the said circuit court, where the matter was again heard, and a decree rendered reversing the decision of the county court, and determining that the said instrument of writing was a valid will of the said testator, duly executed as such. From which decree the appeal herein was taken.

(Syllabus by the Court.)

Under the statute of Oregon, every will, in order to be effective is required to be in writing, signed by the testator, or by some other person under his direction, in his presence, and attested by two or more competent witnesses subscribing under names to the will in the presence of the testator.

. And in order to admit the will to probate, it must be proven to have been so signed and attested, and that the testator, in the case of the disposal of goods and chattels, was over the age of 18 years, and, in the case of the disposal of real property, was of 21 years of age and upwards, and was of sound mind.

To prove the execution of the will, it must be shown that the witnesses who subscribed their names to it did so at the request of the testator; that they saw him sign it, heard him acknowledge it, or observed acts which unmistakably indicated that he had signed it.

The acknowledgement, however, cannot be inferred from mere silence. LORD, J., dissenting.

The proof of a will should not fail because the testimony of the subscribing witnesses thereto is insufficient to establish its execution, provided it can be proven by other competent evidence or by circumstances clearly indicating its execution; but, where such proof is not made, courts have no more authority to adjudge the will effective than they would have to attempt to enforce an oral expression of a party regarding the disposition which should be made of his property at his death.

J.K. Weatherford and W.R. Bilyeu, for appellant.

Hewitt & Irvine and Chas. E. Wolverton, for respondents.

THAYER, C.J., (after stating the facts as above.)

It appears from the allegations and proofs herein that Martin Werts and Mary Werts were husband and wife; that at the time of their marriage said Martin was a bachelor, and said Mary a widow,--had been the wife of one Smith, by whom she had several children then living; that after the marriage said Martin became the head of the family, and nurtured and supported the said children during their minority; that he and the said Mary had, as the fruit of their marriage, a daughter, the said Sarah L. Luper, appellant herein; that, after the said Martin Werts arrived at the age of about 70 years, and became enfeebled in health, he conceived the idea of making a will disposing of his property, which consisted mainly of a tract of land in the town of Tangent, Linn county, and employed one J.J. Beard, a resident of said place, who was supposed to have some skill as a scrivener, to prepare it for him that the said Beard subsequently prepared writing to which the said Martin Werts, on the 17th day of July, 1888, subscribed his mark, and which was also subscribed by M. Peyser and said Beard as witnesses. The said instrument is as follows:

"This my last will and testament. I give to my wife all of my farm and appurtenances, also my houses and lots in Tangent, during her natural life, also all the personal property she can dispose of at her will; and at her death the farm shall be divided as follows: That part of my farm lying north of the county road running through my farm shall be divided equally north and south. I give to Sarah Luper, my daughter, the east half of said land, containing (82) eighty-two acres, more or less, and the west half I give to Mary E. Simpson, the wife of J.H. Simpson; and all of the farm lying south of said county road I give to my granddaughter Mary Smith, also give my organ to Mary Smith. I also give my house and lots in Tangent, at the death of my wife, Mary Werts, to Lucinda Smith, the wife of L.F. Smith. I name and request E.L. Bryan to be the executor of this will.

his

"MARTIN X. WERTS.

mark.

"Witness: M. PEYSER, J.J. BEARD.

"Dated this 17th day of July, 1888."

The said Sarah L. Luper mentioned in said writing was the daughter of the said Martin Werts; the said Mary E. Simpson, a daughter of his wife by the former marriage; the said Mary Smith, a granddaughter of his wife, a daughter of her son, by the former marriage; and the said L.F. Smith, husband of the said Lucinda Smith, was a son of the wife by her former marriage. Mary Smith, the granddaughter, had resided with Martin Werts from the time she was six months old, and had been reared by him and his wife as their child.

That the said Martin Werts, at the time he executed the said writing, was competent to make a will, I think, was established by the evidence beyond a question. He was able to comprehend the condition of his property, his relations to the persons who were, should, or might have been, the objects of his bounty, and the scope and bearings of the provisions of the writing he intended as his will, which was held by this court in Chrisman v. Chrisman, 16 Or. 127, 18 P. 6, to be sufficient evidence of testamentary capacity. Nor do I think that the evidence in the case was sufficient to warrant the presumption that undue influence was exercised over the said Werts in regard to the disposition which he should make of his property in view of death, or which induced him to execute the said writing he intended as his will. Nor do I discover from the provisions of the writing any evidences that the signer of it was actuated by a spirit of bias or prejudice against any one who might be expected to be the recipient of his bounty, or in favor of any one upon whom he sought to bestow it. His bequest to his wife of his real property during her natural life, and all the personal property absolutely, was, under the circumstances, a just and wholesome provision, and displayed wisdom and forethought. She was an old lady, and was entitled to security against want and dependence, and to that attention which the possession of property commands. Why he attempted to bequeath to Mary E. Simpson a part of his farm, or to Lucinda Smith the house and lots in Tangent, does not appear; but it certainly was not strange or anomalous, under the circumstances of their relations. And the bequest to Mary Smith, a child he had raised from an infant, and who was still of a tender age, requiring provisions for her support and maintenance, was very natural and proper. The appellant, it is true, was his own child, and it would ordinarily be expected that he would bestow the main part of his property upon her; but he was under no legal or moral obligation to do so. She had a husband, and her father may have considered that her pecuniary circumstances were already adaquate to her condition in life. Children have no vested rights in the property of their father while he is living, or any interest in it beyond a bare expectancy, the realization of which depends entirely upon his will; and, if he were to disinherit them, it would not affect the validity of his will, except as it evinced an unnatural feeling which, if proved to have been engendered by some designing party, might be evidence of undue influence.

The more serious question in the case is, whether the said writing was executed with the formality which the law requires in the execution of wills. The statute of this state (section 3069, Ann.Laws) provides: "Every will shall be in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two...