Reddaway's Estate, In re

• Decision Date: 17 September 1958
• Parties: Matter of the ESTATE of William A. REDDAWAY, Deceased. Dallas REDDAWAY and Dorlis Moore, Appellants, v. Walter REDDAWAY, Individually and as executor of the estate of William A. Reddaway, deceased, Respondent.
• Court: Oregon Supreme Court

Page 886

329 P.2d 886

214 Or. 410

Matter of the ESTATE of William A. REDDAWAY, Deceased.

Dallas REDDAWAY and Dorlis Moore, Appellants, v. Walter REDDAWAY, Individually and as executor of the estate

of William A. Reddaway, deceased, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on briefs July 2, 1958.

Decided Sept. 17, 1958.

Jack, Goodwin & Santos, Oregon City, and Paul Wiggins, Jr., Portland, for appellants.

Sheldahl & Misko, Oregon City, and Paul Gerhardt, Portland, for respondent.

O'CONNELL, Justice.

William A. Reddaway died on March 14, 1957, at the age of 68. He had executed a will on June 25, 1931, the original of which was destroyed under circumstances which will be later described. A copy of the will was admitted to probate on April 22, 1957, in the circuit court of Clackamas County. Dallas Reddaway and Dorlis Moore, son and daughter respectively of William by his first marriage, filed a petition contesting the will. The defendant Walter Reddaway, son of William by his second marriage, was designated as executor in the will. The contestants contend that William Reddaway had effectively revoked the will in question and that therefore the decedent died intestate. The proponent of the will, Walter Reddaway, contends that the original will was destroyed as a result of undue influence exercised upon William by Dallas, his wife Zena, and his mother-in-law, Golda Ritzau. If the will is sustained, Dallas and Dorlis will each receive $100 and Walter will receive the residue of the estate, the amount of which is not stated in the record, but which we may assume would be substantially more than his half-brother and half-sister would receive. On the other hand, if the will is not sustained and it is found that William died intestate, then the three children would share the estate equally. The lower court dismissed the contestants' petition and entered a decree confirming the 1931 will as the last will of William Reddaway.

The relevant facts are as follows: The decedent owned and operated a trucking business. His son Walter began working in the business as a truck driver at the age of 17. In 1939, when his father suffered a stroke, Walter took over the management of the business. Dallas also worked for his father, but only during the period from 1941 to 1951. It is quite apparent that up until the last six months of William's life he relied upon Walter rather than Dallas with respect to both business and personal matters. Walter was constantly in touch with his father, particularly after his father's first stroke in 1939. Dallas was not a frequent visitor at his father's home until after the death of William's second wife, Ethel, in September 1956. After Ethel's death it was necessary to employ someone to take care of William, who was at the time almost helpless, due to a series of paralytic strokes. Golda Ritzau was employed as a practical nurse at a wage of $150 per month. She moved into the William Reddaway home on November 1, 1956. On January 3, 1957, the original of the will which William had made in 1931 was destroyed by Dallas at his father's request. On January 27, 1957, at William's direction, his attorney, George Hibbard, prepared another will, by the terms of which Walter, Dallas and Dorlis were to share equally in his estate, subject to a devise to Golda Ritzau of a life estate in the Reddaway home. When Mr. Hibbard brought the will back to William for execution, William refused to sign it because it named a bank as the executor, and William wanted Dallas to serve in that capacity. Further, he instructed Mr. Hibbard to increase Golda's share so that in addition to the life estate she would receive an annuity of $150 per month during her lifetime. This will was never executed.

We now turn to the specific facts which the proponent of the will alleges were sufficient to constitute undue influence. It is contended that the influence was exercised principally by Golda, but acting in concert with Dallas and his wife Zena. Most of the testimony relates to Golda's conduct in taking care of William in the Reddaway home. Golda entered upon her employment as a result of the suggestion made by Dallas, although Walter agreed to it. Golda made it clear that she would expect to have complete charge of her patient. There is clear evidence that after she took over there was a change in William's attitude toward his son Walter and toward others for whom he had previously indicated warm affection. There is evidence indicating that Golda did not want William to be left alone with others; that she spoke to him in affectionate terms, calling him 'honey' and 'dear'; that she dressed in a manner designed to excite his sexual appetite and 'started * * * using an extreme amount of make-up.' Walter testified:

'I went over one Monday earlier than usual and it was approximately eight-thirty. I walked in the house. Dad had red all over his lips. I inquired and asked him. I said, 'Where did you get the red lips?' Golda didn't give him a chance to answer, but she said, 'Oh, he has been eating prunes.''

Golda kept a nurse's chart showing the condition and activity of her patient from hour to hour each day. An incident relating to the keeping of the chart is of particular significance. Five days after William had destroyed his will, Dr. Strickland, William's physician, was called to examine him, possibly at Golda's suggestion. When the examination had been completed Golda requested the doctor to record in her chart the result of his examination. He made the following notation: 'Abdomen negative. Mind is clear, mentally alert. * * * Physically and mentally very good.' This is the only notation in the nurse's chart made by anyone other than Golda. Dr. Strickland testified that he made the notation because Mrs. Ritzau said 'that there had been some kind of an upset between members of the family.' The record does not disclose any evidence of a family upset at the time the notation was made. If an upset existed it would not have been over the destruction of the will, because at the time the notation was made, Walter did not know that the will had been destroyed.

The circumstances leading up to and attending the destruction of the will were as follows: Approximately two months after Golda began her employment in the Reddaway home, William requested that his will be brought to him. This request was made by way of a note which the contestants allege was written by William. The note was carried by Dallas to William's attorney. There was testimony that William was not able to write except 'in case of someone holding his hand and guiding his hand.' On a previous occasion William had signed some bonds by a mark because he could not sign his name. When the will was obtained it was handed to William. William then requested that Dallas read the will aloud. The contestants testified that William read the will. There is testimony that he was unable to read at this time. After the will was read, William said 'No good.' At William's request Dallas burned the will. The only persons present were William, Dallas, Zena and Golda. All of this occurred about midday. The only explanation for Zena's presence on this occasion was the fact that she had often accompanied her husband on his visits to his father. The attorney who drew the will was not present at the time the will was burned. According to the testimony of Zena, William said that 'he felt good that it was burnt and thought that things had been made right that had been wrong for a number of years.' The evidence is quite clear that William was emotionally unstable, probably senile, during the period that influence was alleged to have been exerted.

When Golda had been at the Reddaway home but for a short period William's attitude toward Walter changed from one of warmth to coolness and reticence. As Walter put it, 'It was a cold, cool feeling in the house when I would walk in.' There is no substantial evidence to explain this change other than the influence exerted upon William by Golda, Dallas, and possibly Zena. As late as September 1956 William had assured Walter that the house would belong to him upon William's death. There is no evidence that Walter had done anything which would have caused his father to decrease the amount of his legacy under the original will.

There is evidence of other acts of participation in William's affairs by the contestants which suggests that influence was exerted upon him. William's personal mail which had always been delivered to the trucking company's office was ordered to be delivered to the Reddaway home. A diamond brooch and ring which had belonged to William's wife Ethel and which Walter had in his possession were called for by William, and when Walter failed to deliver them, Dallas asked him why he had failed to do so. It may be noted that Ethel was Walter's mother and the step-mother of Dallas. There are other facts in the record indicating the participation of Golda and Dallas which could be regarded as evidence of the exertion of influence upon William. We think that the evidence recited above is sufficient to establish that undue influence was exercised in this case. Although much of the testimony is conflicting, as is usual in cases of this type, we are of the opinion that the proponent has carried his burden of proof.

We shall now consider the principles of law which are applicable to the facts in this case. It may first be noted that in the usual case in which undue influence is relied upon as a basis of attack, the object of the suit is to set aside the will. In the instant case the object of the suit is to sustain the will, it being asserted that undue influence was exerted upon the testator so as to cause him to destroy his will. However, the underlying principle is the same. Briefly stated, that principle is that the law will not permit improper influences to control the disposition of a person's property. We speak of...