Meier's Estate, In re

• Decision Date: 28 November 1950
• Citation: 190 Or. 140,224 P.2d 572
• Parties: In re MEIER'S ESTATE. CAMPBELL et al. v. BEAL et al.
• Court: Oregon Supreme Court

Page 572

224 P.2d 572

190 Or. 140

In re MEIER'S ESTATE.

CAMPBELL et al. v. BEAL et al.

Supreme Court of Oregon.

Nov. 28, 1950.

Larry Landgraver, Portland, argued the cause for appellants. With him on the brief was Shirley A. Field, Portland.

John H. Carson, Salem, argued the cause and filed a brief for respondents.

Before LUSK, C. J., and BRAND, ROSSMAN, HAY and LATOURETTE, JJ.

HAY, Justice.

Fred Meier died in Marion County, Oregon, on October 12, 1947, leaving an estate in said county, consisting of real and personal property, the value whereof is not shown. By an instrument purporting to be his last will he bequeathed to his son, Paul Meier, the sum of $1,000, to his daughter, Helen Campbell, a like sum, to St. Benedict's Abbey, Mt. Angel, Oregon, the sum of $2,000, and the residue of his estate to Agnes Meier (now Agnes Meier Beal), a niece. The will was admitted to probate in common form on October 23, 1947. Paul Meier and Helen Campbell are Fred's next of kin, and they appeal from a decree of the circuit court for Marion County sustaining the validity of the will as against a contest by them.

As grounds of contest the contestants' petition alleged that the will was not the voluntary act of the testator but was the result of undue influence exercised over him by said Agnes and one Roy Damon.

Issue was joined by Agnes Meier Beal individually, and as executrix of said will, and, at a hearing on the petition, the will was proved in solemn form. Thereafter, testimony was submitted by the respective parties upon the issue of undue influence, and in due course the court's decree was entered sustaining the will.

It is contended that the due execution of the will was not clearly and unequivocally proved. Our statute, § 18-201, O.C.L.A., provides as follows: '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 or more competent witnesses, subscribing their names to the will, in the presence of the testator.'

The contestants say that the evidence must show that the subscribing witnesses to the will became such at the testator's request; that they saw him sign the will, or heard him acknowledge his signature, or observed acts which unmistakably indicated that he signed it; and that acknowledgment cannot be inferred from mere silence. They cite in this connection Luper v. Werts and Smith, 19 Or. 122, 23 P. 850, 855. In that case, it was held that if the evidence showed that the testator, by any sign, motion, conduct, or other attending circumstance, gave the witnesses to understand that he had subscribed the instrument, that would be a sufficient acknowledgment. Mere silence on his part would not be enough, but if he said to the witnesses: 'this is my will', or if the attorney who prepared the will said to the witnesses, in the presence of the testator: 'This is the will of Mr. Werts. He has signed it, and wants you to subscribe your name to it as a witness', or words to that effect, that would be a sufficient acknowledgment. The court said, in part: '* * * A subscribing witness to a will, therefore, must be something more than a person who subscribes his name as a witness to it. The testator must either sign the will in the presence of the witness, or must acknowledge to him, by word or act, that he had signed it. It is not necessary that the witness know the contents of the instrument subscribed by him, or its nature or character; but he must be able to testify that the principal in the affair put his name upon the identical piece of paper upon which he placed his own.'

We think that due execution of the will in the present case was sufficiently proved. Contestants, arguing to the contrary, 'pass over the testimony of Mr. Linfoot, who was one of the subscribing witnesses, because he was also the attorney who was charged with the supervision of the ceremony, and if he could not absolutely testify to his adherence to the rules of proper attestation, a serious shadow would be cast on his professional ability.' But there is no rule of law disqualifying an attorney from acting as a witness to a will merely because he drafted it or supervised its execution. Cf. In re Skinner's Will, 40 Or. 571, 583, 62 P. 523, 67 P. 951.

The testimony of the other witness, Mr. A. H. Schnider, is sought to be impeached by the fact that, some ten years after the execution of the will, he made an affidavit, at the request of the attorney for contestants, to the effect that he had not seen either Mr. Meier or Mr. Linfoot sign the will, but that he had seen Mr. Linfoot's secretary sign it (who, as a matter of fact, did not sign it). On the witness stand he explained that, when he made the affidavit, he had been unable to recall the circumstances clearly, but that, after he had had an opportunity for reflection, he remembered what happened. We quote from his testimony:

'Q. Would you relate to his Honor your recollection of what happened on the occasion when you signed that will? A. I was up there at my work in the office when Mr. Linfoot came in, together with Mr. Meier. And Mr. Linfoot started to introduce us and Mr. Meier said, 'I know him,' and I said, 'yes', and, of course, Mr. Linfoot didn't know we were acquainted, and Mr. Linfoot asked me--he says, 'Mr. Meier is making a will and I have to have a couple of witnesses.'

'Q. Mr. Meier was there at that time? A. Yes. I said, 'okay, I will sign it.'

'Q. Then what happened? A. Mr. Meier signed his name.'

Mr. Schnider identified Fred's signature upon the will, and testified that after Fred signed, first he and then Mr. Linfoot signed as witnesses. All three were in presence of each other, with 'just a show case between them'. Both Mr. Schnider and Mr. Linfoot testified that Agnes Meier was not present.

No specific request by the testator to the witnesses to sign the will was necessary. They subscribed their names in his presence; he knew that they were signing as witnesses to his will, and he made no objection. This was sufficient. In re Ames' Will, 40 Or. 495, 499, 67 P. 737. Moreover, the attestation clause, which recited due execution of the instrument, creates a strong presumption in favor of such due execution, which can be overcome only by clear and convincing evidence to the contrary. In re Davis' Will, 172 Or. 354, 361, 364, 142 P.2d 143; In re Fletcher's Estate, 147 Or. 139, 143, 32 P.2d 123.

It is suggested that the will is an unnatural one, and that such unnaturalness is proof of abuse of confidence and the exercise of undue influence on the part of Agnes Meier Beal. The question whether or not the will was unnatural requires the statement of a portion of the evidence adduced upon the hearing.

The testator was born in Switzerland, and was brought to this country by his parents when he was about five years old. He did not have much formal schooling, but was able to read and write, and several witnesses testified that he was skillful in the handling of money. According to his brother William, Agnes's father, testator was 'a little slow in fractions, but he was in business and he some times done $100.00 a day, and could change money as good as anybody.' He had been at first a bartender, and, for a few years prior to state prohibition, conducted his own liquor business in Portland. He married the mother of his two children in 1903. The marriage was dissolved at the suit of the wife, by decree entered January 30, 1919. The children at that time were 13 and 14 years of age respectively, and their custody was awarded to their mother.

In December, 1919, Fred called at the office of Mr. Joseph Van Hoomissen, an attorney in Portland who had counseled him from time to time, and told Mr. Van Hoomissen that he desired to make a will. Mr. Van Hoomissen knew of Fred's family trouble and of the divorce. Fred instructed Mr. Van Hoomissen as to what disposition he desired to make of his estate, and Mr. Van Hoomissen drew a will accordingly, which Fred executed. There seems to be some doubt as to the contents of this will. It was not offered in evidence. If Mr. Van Hoomissen retained an office copy, he was unable to produce it at the hearing. According to his recollection, the will made a bequest 'to the St. Benedicts', made some provision for the testator's divorced wife, and gave the residue to his children. Flavius Meier, one of his brothers, was made executor. Flavius Meier testified that the will was made in favor of testator's brother Thomas and Flavius himself, and not in favor of Fred's children. Flavius never saw the will, however. Mr. Van Hoomissen's recollection of the details of the will was not clear, which is not surprising in view of the lapse of some thirty years between the execution of the will and the hearing of the case at bar. The will was left with Mr. Van Hoomissen until some time in August, 1934, when Fred called at Mr. Van Hoomissen's office and asked for and received his will, giving no reason why he wanted it.

Agnes Meier was born in the year 1915. After completing high school at Salem, she went to Portland and enrolled in the Behnke-Walker Business College, taking a commercial course. In 1937, she returned to Salem, and lived for a time at her father's farm, a few miles southeast of that city. Thereafter, she had temporary employment at various places in Salem, including two law offices.

Fred Meier, during that period, was in the habit of visiting his niece occasionally, during the noon hour, at the places where she was employed, sometimes bringing his own lunch there, and sometimes taking her out to lunch. Occasionally he visited at her home. She testified: 'One afternoon he said he was awfully lonely and I was--it was hard on me to get back and forth to work. I was living with my folks and I said I wished I could live in town, and he said, 'Why don't you come and make me a home, and if you come in and make me a home, I will give you...