Melvin v. Lyster

• Court: Oregon Supreme Court
• Writing for the Court: Kelly
• Citation: Melvin v. Lyster, 174 Or. 531, 149 P.2d 947 (Or. 1944)
• Decision Date: 27 June 1944
• Parties: IN RE WADE'S ESTATE MELVIN ET AL. <I>v.</I> LYSTER ET AL.

174 Or. 531

149 P.2d 947

IN RE WADE'S ESTATE MELVIN ET AL.

v. LYSTER ET AL.

Supreme Court of Oregon.

Argued May 24, 1944.

Affirmed June 27, 1944.

Wills

1. Subscribing witness' testimony seeking to impeach due execution of will should be received with caution and viewed with suspicion, especially where testimony of subscribing witness is favorable to will at probate and against it at contest.

Wills

2. Proponents of will who, together with attestation clause, showed genuineness of testatrix' and subscribing witnesses' signatures, established a prima facie case of due execution.

Wills

3. The attestation clause reciting due execution of will creates a strong presumption in its favor, which prevails unless overcome by clear and convincing evidence.

Wills

4. That some or all subscribing witnesses testify adversely to execution of will does not as matter of law overcome favorable presumption arising from attestation clause.

Wills

5. The rule requiring especial caution as to subscribing witnesses' testimony to impeach execution of will, where subscribing witnesses testified favorably to will at probate, and against it at contest, is applicable where probate was obtained on affidavits as well as where attesting witnesses appeared in court.

Wills

6. Evidence in will contest established due execution of will, notwithstanding testimony of subscribing witnesses, inconsistent with statement in attestation clause, that they did not see testatrix sign the will.

Wills

7. Evidence in will contest sufficiently established that sufficient indication or statement emanated from testatrix, in presence of attesting witnesses, that the document was testatrix' will.

Wills

8. Evidence did not establish undue influence or lack of mental capacity as ground for contesting will.

  Admissibility and credibility of testimony of subscribing
                witness tending to impeach execution of will or testamentary
                capacity of testator, note, 79 A.L.R. 394. See, also, 28 R.C.L
                370
                  68 C.J., Wills, § 755
                

Appeal from Circuit Court for Benton County.

L.G. LEWELLING, Judge.

Proceeding in the matter of Elizabeth C. Wade, deceased, wherein Herbert Melvin and others instituted proceeding to set aside probate of the will, opposed by Mary E. Lyster and others. From a decree admitting the will to probate, contestants appeal.

AFFIRMED.

Mark V. Weatherford, of Albany (Weatherford & Thompson, of Albany, on the brief), for appellants.

E.R. Woods, of Corvallis (Wallace G. Benson, of Reedsport, on the brief), for respondents.

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

KELLY, J.

This is a proceeding to test the validity of the last will and testament of Elizabeth C. Wade. The contestants are children of deceased children of decedent. These grandchildren were expressly disinherited by the terms of the will in suit.

As shown by the inventory, the appraised value of the estate was $35,109.20.

After directing the payment of debts and funeral expenses, the deceased, by her will, bequeathed to her daughter, Clementine Dailey, a note theretofore executed by said daughter in the sum of $1,000.00.

In the third, fourth and fifth paragraphs of the will the disinherited grandchildren, being twelve in number, are each named. Four of them are therein stated to be the children of testatrix' deceased daughter Sophia Melvin; five of them are described as the children of testatrix' deceased son, Richard Lyster, and three others are designated as children of testatrix' deceased daughter Ada Murphy.

By the sixth paragraph of the will, the eight living children of testatrix are made residuary legatees and devisees in equal parts, share and share alike.

Testatrix also named her son Harry J. Lyster and her daughter, Kathleen (misspelled Cateline) Dailey as the executor and executrix of her last will and testament to serve without bonds.

The will is dated July 27, 1937. Testatrix died on April 1, 1941. The will was admitted to probate on May 2, 1941. This proceeding to set it aside was instituted on April 9, 1942. On August 3, 1942, by stipulation of the parties this proceeding was transferred to the circuit court of Benton County. The trial was had in the circuit court on January 18, 1943. On December 20, 1943, a decree was rendered by the trial court declaring the will in suit to be the last will and testament of said Elizabeth C. Wade, deceased, admitting the same to probate in solemn form and remanding the cause to the county court to proceed with the probate of said will in solemn form. From this decree, contestants have prosecuted this appeal.

Three grounds are assigned for this contest, namely, improper execution of the will, undue influence, and mental incapacity.

In November, 1936, while visiting with her daughter, Kathleen Dailey, near Reedsport, Oregon, testatrix fell and fractured her hip. On November 13, 1936, testatrix was taken to a hospital in North Bend, Oregon, where she remained until about June 5, 1937; then she returned to Corvallis, Oregon, where she lived until her death on April 1, 1941. Following her accident, when she was not in bed, most of her time was spent in a wheelchair. After her return to Corvallis, as stated testatrix continued to live with her daughter, Ella I. Hunt, in Corvallis, with whom she had been living since August 1933.

As stated, one of the grounds upon which this contest is based is that the will was not executed in the manner provided by law. The attesting witnesses were Laura M. Layman and Agna Holter.

The attestation clause is as follows:

"The above instrument, consisting of this and one other page, was at the date thereof signed, sealed, published and declared, by the said Elizabeth C. Wade as and for her Last Will and Testament, in the presence of us, who, at her request and in her presence and in the presence of each other, have subscribed our names as witnesses thereto."

At the contest, however, Laura M. Layman testified that she did not see testatrix sign the will, but when she, the witness, signed the paper, she saw testatrix' name on the paper. This witness also testified that Mrs. Hunt had asked witness if she would sign testatrix' will and that immediately before witness came into the room where testatrix was sitting, Mrs. Hunt asked witness if she would come, saying that the lawyer would be there and wanted witness to come and sign it then.

Witness, Agna Holter, testified that she did not see testatrix sign the will. She testified that she did see witness Laura M. Layman sign it. Witness Holter also testified that both she and witness Layman were there and both signed the will at the same time, and that testatrix was sitting at the table when witness Holter came in.

Mrs. Hunt testified that when the will was executed, Mr. E.R. Woods, the attorney who had prepared the will, the testatrix, Mrs. Holter, Mrs. Layman and Mrs. Hunt, herself, were present in the room; that testatrix signed the will with Mr. Woods' pen while the attesting witnesses were standing at the end of the table to the left of testatrix and Mr. Woods was standing at the end of the table at testatrix' right, and that after testatrix signed her will, the attesting witness signed with the same pen that testatrix had used. This is corroborated by the testimony of Mr. Woods. We quote from his testimony:

"Q I hand you Proponents' Exhibit A and ask you what that is.

A I saw this signed. I am not sure whether this was initialed at the time they made the affidavit or not. I am not sure about the initialing of that will, but that was signed at that time.

Q That is the instrument you prepared?

A Yes, that is the instrument I prepared, and that was signed there by Mrs. Wade and the witnesses, Mrs. Holter and Mrs. Layman, and in addition to those, Myself and Mrs. Hunt were present."

1-4. Upon the question, whether the...