Salter's Estate, In re

• Decision Date: 27 February 1957
• Citation: 209 Or. 536,307 P.2d 515
• Parties: In the Matter of the ESTATE of Francis P. SALTED, Deceased. Hattie SALTER, Appellant, v. R. E. SALTER, Administrator, Respondent.
• Court: Oregon Supreme Court

Page 515

307 P.2d 515

209 Or. 536

In the Matter of the ESTATE of Francis P. SALTED, Deceased.

Hattie SALTER, Appellant, v. R. E. SALTER, Administrator, Respondent.

Supreme Court of Oregon.

Argued Dec. 12, 1956.

Decided Feb. 27, 1957.

Noreen Kelley, Medford, argued the cause for appellant. On the brief was Edward C. Kelly, Medford.

Walter D. Nunley, Medford, filed a brief for respondent.

Before WARNER, ^* C. J., and TOOZE, ^** LUSK and BRAND, JJ.

BRAND, Justice.

Francis P. Salter died in the Oregon State Hospital at Salem on 19 February 1952 at the age of 82. He was survived by Hattie Salter, his widow, the petitioner herein, and by R. E. Salter, his son by a previous marriage, now the contestant. On 20 March 1952 the contestant filed a petition for appointment as administrator of the decedent's estate, alleging that diligent search had been made among the effects of the decedent and that decedent left no will. On 24 March 1952 the contestant was appointed administrator and he qualified as such. On 10 June 1954 Hattie Salter filed a petition for revocation of the letters of administration and for the probate of a lost will, an unsigned purported office copy of which was presented with the petition. Citation was served on the administrator and the cause was tried. On 16 July 1954 the court entered an order dismissing the petition, and Hattie Salter appeals. The petition for probate of will was in part, as follows:

'That as more particularly appears from the affidavits of Kenneth G. Denman, Hattie Salter and Charlotte Haukli, attached hereto and by this reference made a part hereof, your petitioner has ascertained that on or about April 29, 1943, Kenneth G. Denman, a duly licensed, admitted and practicing attorney in the City of Medford, Jackson County, Oregon, was contacted by said Francis P. Salter, relative to the drawing of a Will for said Francis Philip Salter, and that on April 29, 1943, said Kenneth G. Denman drew a Last Will and Testament, and that to the best of the knowledge and recollection of said Kenneth G. Denman, said Will was signed by said Francis Philip Salter and witnessed by said Kenneth G. Denman and his stenographer, Doris Cator, and said Francis Philip Salter took said Will with him when he left the office of Kenneth G. Denman on April 29, 1943. That your petitioner has not been able to locate or find the original of said Will signed by said Testator and witnessed by said witnesses aforesaid; that prior to his death, said Francis Philip Salter informed your petitioner that he had made a Will which was in his safety deposit box in the Medford Branch of the United States National Bank of Portland at Medford, Oregon. That your petitioner knows that prior to the death of said Francis P. Salter, said R. E. Salter had access to the safety deposit box of said decedent and is informed and believes and, therefore, states that said Will has been or is in the possession of said R. E. Salter.'

It is also alleged that 'said Will has either been lost or destroyed or is in the possession of said R. E. Salter.' The remaining allegations of the petition consist of the recital of evidentiary matter on which the petitioner relies as indicating the existence of a will at the time of her husband's death. The only heirs at law are the widow and son. The parties, on the basis of Mr. Denman's affidavit, stipulated as follows:

'* * * that the statements in the affidavit attached to the petition of Kenneth G. Denman are correct and may be considered as having been testified to by Mr. Denman under oath if called as a witness in this proceeding; that Mr. Denman was on April 29, 1943, has been since that time and is now a duly licensed, qualified and practicing attorney within the state of Oregon, practicing in the city of Medford, and within Jackson county, Oregon; that on or about April 29, 1943 Mr. Denman maintained an office in the Brophy Building in Medford, Oregon, and that on or about that date he was consulted by the decedent, Francis Philip Salter, also known as Francis P. Salter and Frank Salter, with reference to the drawing of a last will and testament for Mr. Salter; that on or about April 29, 1943, Mr. Denman prepared a last will and testament for Mr. Salter, and that on that date Mr. Salter paid him a fee of ten dollars for preparing a last will and testment; that to the best of Mr. Denman's knowledge, recollection and belief the will was signed by the decedent Francis P. Salter on that day, namely, April 29, 1943, and that the will was witnessed by Mr. Denman and by his then secretary, Doris Cator, and that to the best of Mr. Denman's knowledge, recollection and belief at that time Mr. Salter took the executed and witnessed will with him when he left Mr. Denman's office on April 29, 1943; that Petitioner's Exhibit '1' marked for identification is Mr. Denman's office copy of the will which, to the best of Mr. Denman's knowledge, recollection and belief was duly executed and witnessed as hereinbefore stipulated; that the notations which appear on the office copy, Petitioner's Exhibit '1' marked for indentification, are in the handwriting of Mr. Denman's former secretary, but that Mr. Denman has no recollection of the occasion or reason for the notations made on the office copy by the secretary, and that Petitioner's Exhibit '1', which is Mr. Denman's office copy of the last will and testament of Francis Philip Salter, has remained in Mr. Denman's possession up to the time of this proceeding, and has been produced by him for identification and admission in evidence in this hearing, and that petitioner's Exhibit '1' may be admitted in evidence.'

The office copy which was not signed by either the decedent or the witnesses was introduced in evidence as Exhibit 1. It is the usual form for a will, and provides for the payment of debts and funeral expenses, bequeathes an automobile to testator's wife and confirms the gift of a diamond ring to her. The instrument is typewritten. The paragraph numbered 'Third' contains numerous excisions, alterations and additions in handwriting with pen and ink. We shall set that paragraph forth below. Where an ink line is drawn through any typed words, we have typed a line through those words. Where typed words were thus stricken, and changes were made in ink, we have typed those changes in italics over the portions stricken. The hand-written portions added to the typed portions but not substituted for stricken portions are also placed in italics. With this explanation, we set forth the paragraph and the alterations and additions, as follows:

'Third: I give, devise and bequeath unto my said wife, Hattie I. Salter, all of the following described land located in Jackson County, Oregon, to-wit:

'Commencing 10 rods West of the Northeast corner of the Northwest Quarter of the Northeast Quarter of Section 32 in Township 32 South of Range 3 East of the Willamette Meridian in Jackson County, Oregon, thence

South 24 1/2 rods, thence W 6 1/2 rods, thence N 24 1/2 rods, thence E 6 1/2 rods, rods to the place of beginning, together with 4 houses and other buildings located thereon & water rights appurtenant and in connection therewith, I give and bequeath all household furniture, fixtures and household equipment in the 4 houses located on the said real property unto my said wife, Hattie I. Salter.'

The residue of the estate was devised and bequeathed to the testator's son, R. E. Salter, who was appointed executor to serve without bond.

Before considering the evidence we will review the allegations of the petition concerning the testator's son. It is stated therein that R. E. Salter, in his petition for letters of administration, alleged that the decedent died intestate. In fact, the petition for letters of administration recites 'due and diligent search' for a will, which statement is followed by the conclusion that the decedent died intestate. Petitioner Hattie Salter alleges that she 'knows that prior to the death of said Francis P. Salter, said R. E. Salter had access to the safety deposit box of said decedent * * *.' She alleges further that the testator complained that R. E. Salter had not sent to him the key to the safety box and that the son was having a duplicate made which he would mail to the testator. Finally she alleges that the will 'has either been lost or destroyed or is in the possession of said R. E. Salter.' The foregoing constitutes all of the allegations connecting R. E. Salter with the transaction. While by inuendo she hints at misconduct by the son, petitioner's final charge amounts to no more than that the will is either lost or destroyed (without specifying whether it was destroyed by the testator or by the son) or is in possession of the son. Some care appears to have been taken to avoid any direct charge that the son wrongfully destroyed his father's will.

Much of the testimony of petitioner is devoted to the proof that Francis P. Salter made a will. The stipulation of the parties sufficiently establishes that fact. The only question is whether he destroyed it himself or some one else wrongfully destroyed it.

The petitioner's first contention is highly technical. Upon the filing of the petition for probate of a lost will, a citation issued to the administrator, R. E. Salter, directing him to appear and show cause why the alleged will should not be admitted to probate. The petition was accompanied by affidavits. The contestant filed no pleading or affidavits in opposition to the petition but appeared personally and testified in opposition thereto. Petitioner makes the contention that since R. E. Salter did not controvert the petition 'by any affidavit or other appearance filed of record' (italics ours), but merely testified in open court, the petition must be deemed to be true and the court should have admitted the will to probate without taking evidence.

This case bears no resemblance to the situation which arises when a plaintiff files a...