Minsinger's Estate, In re
| Decision Date | 06 September 1961 |
| Citation | 364 P.2d 615,228 Or. 218 |
| Parties | In the Matter of the ESTATE of Charles E. MINSINGER, Deceased. Elmer H. MINSINGER and Sara C. Flinn, Appellants, v. UNITED STATES NATIONAL BANK OF PORTLAND, Masonic and Eastern Star Home of Forest Grove, Oregon, Shriners Hospital for Cripped Children, Frances McBrayer, David W. Killion, Lexy Minsinger Johnson, Esther Minsinger Legler, and Lois Laughlin Roberts, Respondents. |
| Court | Oregon Supreme Court |
Don S. Willner, Portland, argued the cause for appellants. On the brief were Lenon & Willner and Robert A. Bennett, Portland.
Clarence D. Phillips, Portland, argued the cause for respondents Masonic and Eastern Star Home of Forest Grove, Oregon, and Shriners Hospital for Crippled Children. On the brief were Phillips, Coughlin, Buell & Phillips, Portland.
Leonard D. Alley, George B. Campbell, and Leonard Bennett, Portland, argued the cause for respondents David W. Killion, United States National Bank of Portland, Esther Minsinger Legler, and Frances McBrayer. With them on the brief were Castles, Musick & Thompson, Beaverton, Williams & Alley, Koerner, Young, McColloch & Dezendorf, and Smith, Gray, Hill & Rodgers, Portland.
Before McALLISTER, C. J., and SLOAN, O'CONNELL, and LUSK, JJ.
This is an appeal from an order of the circuit court for Multnomah county, probate department, admitting to probate the will of Charles E. Minsinger, deceased.
The question for decision is whether there can be in Oregon a partial revocation of a will by cancellation.
The testator died August 23, 1959, leaving an estate consisting of real and personal property appraised at $139,264.76. His will, as drawn and executed by him with legal formality on January 11, 1951, contained eleven paragraphs. Subsequently to the execution of the will, apparently on May 27, 1957, Mr. Minsinger attempted, with a pen, to cancel certain provisions by either crisscrossing or drawing a line through the provision and interlining or writing on the margin 'Canceled May 27/57 Charles E. Minsinger'. He also made three additions to the will to which attention will be called. The following provisions were attempted to be canceled in the manner hereinabove explained: In the sixth paragraph a bequest to his grandniece by marriage, Mrs. Frances McBrayer, of one-half of the merchandise in Star Antique Shop, Portland, Oregon, one Fisher piano, one French or gold colored cabinet, all tableware with initial 'M' on same in the testator's residence in Portland, Oregon. In the eighth paragraph a devise to David W. Killion, grandnephew of the testator by marriage, of two lots in Portland, Oregon, and a bequest of one phone table and chair, one piano bench, and one tea wagon. In the ninth paragraph (which is a devise in trust to the testator's trustee, The United States National Bank of Portland, Oregon, of real property in Portland, Oregon) the bequest to David W. Killion of an equal share with four others of the net income from such real property. In the tenth paragraph, the residuary clause, the devise and bequest to David W. Killion of an equal share with four others in the residue.
The additions made to the will after its execution by the testator are as follows: In the second paragraph the testator appointed The United States National Bank of Portland, Oregon, his executor and trustee. On May 27, 1957, he added to this provision 'also Mrs. Esther L. Legler, Executrix, Jointly.' In the seventh paragraph a devise of real property in Portland, Oregon, to Mrs. Esther Minsinger Legler was crossed out and after it was written . The seventh paragraph also contained a bequest to Mrs. Legler of one-half of the merchandise in Star Antique Shop in Portland, Oregon, and one-half of the household goods, brica-brac, and personal property in the testator's residence in Portland, Oregon. Lines were drawn through the word 'one-half' in each of these provisions and, in each instance, the word 'All' was interlined.
In the eleventh paragraph the testator expressed a desire and request that the household goods, bric-a-brac, and personal property in his residence in Portland, Oregon, be divided between those to whom he had bequeathed them by mutual and friendly agreement. Lines were drawn through the words 'divided between those' and the words 'all given to my Cousin Mrs. Esther L.Legler' were interlined.
The markings made by the testator did not obliterate any of the words of the will, which are perfectly legible.
There is no dispute about the facts. A stipulation entered into by the parties indicates that after making the changes described, the testator placed the will in a sealed envelope and so retained it in his possession until his death.
The will was originally admitted to probate and letters testamentary issued to The United States National Bank of Portland (Oregon) on August 31, 1959. Thereafter, the contestants Elmer H. Minsinger and Sara C. Flinn, brother and sister of the decedent and his next of kin and heirs at law, filed a petition alleging in substance that because of the obliterations and cancellations made by the testator the will had been revoked. They prayed that the administration of the estate proceed on a basis of intestacy or, in the alternative and should that prayer be denied, that the assets of the estate described in the canceled portions of the will be ordered distributed to them as next of kin and heirs at law as though the testator had died intestate.
In this court the contestants have abandoned their claim of a total revocation of the will and submit the question of a partial revocation as the sole question for decision.
The circuit court found, inter alia: 'In making the interlineations, cancellations and delineations upon the typewritten Will the testator did not intend to revoke the Will, but merely to change certain of its provisions.'
As a conclusion of law, the court determined that these attempted changes had 'no testamentary effect by reason of * * * Section 114.030 ORS, 1 and Section 114.110 ORS.', and that the document as originally typewritten and executed on the eleventh day of January, 1951, was entitled to be received in probate as the Last Will and Testament of Charles E. Minsinger, deceased.
It is entirely clear from the will itself and the other evidence that the testator did not intend to revoke the will, but only parts of it. The directions in the will as to the testator's burial, the payment of the expenses of his last illness and burial and the payment of his debts, the appointment of an executor and two charitable bequests were left undisturbed, as were the trust provision and the residuary clause, except in the particulars above mentioned. The testator's signatures appearing at the bottom of each page of the will, except the last, and at the end of the will immediately preceding the attestation clause, were unmarked. His intention that the will should be carried out as altered is shown by his attempt to give to his cousin, Mrs. Legler, all the personal property described in paragraphs six and seven, half of which under the will as originally drawn, would have gone to his grandniece by marriage, Mrs. McBrayer and half to Mrs. Legler. As the court said in Board of National Missions of Presbyterian Church v. Sherry, 372 Ill. 272, 23 N.E.2d 730, 733:
* * *'
The contestants therefore were right in abandoning their contention that Charles E. Minsinger revoked his will and died intestate. It is equally clear that the testator intended to revoke certain portions of his will and in at least two particulars to make a new disposition of property different from that made in the will as executed so that the question is upon the correctness of the court's conclusion that the testator's acts were without legal efficacy.
ORS 114.110 reads:
'A written will cannot be revoked or altered otherwise than by another written will, or another writing of the testator, declaring such revocation or alteration and executed with the same formalities required by law for the will itself; or unless the will is burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person, in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.'
This section was originally enacted on October 11, 1862. Deady, General Laws of Oregon 1845-1864, [228 Or. 224] pages 340-341, Civ. Code Chapter 8, Title 8, § 770. It replaced section 6 of the Oregon Wills Act (Act of September 26, 1849, Laws of 1850-51, p. 274, § 6; Laws of 1854-55, p. 384) which read:
'No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked, except by a subsequent will in writing, or by burning, canceling, tearing or obliterating the same by the testator, or in his presence, and by his consent and direction.' (Italics added.)
See 1 Jaureguy and Love, Oregon Probate Law and Practice, § 372. The omission of the italicized words, 'nor any part thereof', from the existing statute constitutes a significant change bearing upon the question before us. That question has never been determined by this court. In 1...
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