Sessions' Estate, In re
| Decision Date | 01 July 1959 |
| Citation | 341 P.2d 512,217 Or. 340 |
| Parties | Matter of the ESTATE of Jennie M. SESSIONS, Deceased. Charles F. DEAN and S. L. Ross, Appellants, v. FIRST NATIONAL BANK OF PORTLAND (Oregon), a national banking association, individually and as executor of the estate of Jennie M. Sessions, deceased, and as Trustee under the last will of James T. Tuffs, deceased; William Michael Tuffs, a minor; William Sherman Tuffs; James M. Dean; Estelle M. Kane; Opal Hottenroth; William Grant Tuffs; Joseph C. Dean; Georgia Kneeland and Robert J. Dean, Respondents. |
| Court | Oregon Supreme Court |
Jack L. Kennedy, Portland, argued the cause for appellants. On the briefs were Krause, Evans & Lindsay, Walter H. Evans, Jr., and Jack L. Kennedy, Portland.
Carl M. Brophy, Medford, argued the cause for respondents First National Bank of Portland (Oregon), William Michael Tuffs, a minor, and William Sherman Tuffs. On the briefs were Duncan, Brophy, Wilson & Duhaime, Medford.
Before ROSSMAN, P. J., and LUSK, WARNER, PERRY, SLOAN and O'CONNELL, JJ.
This is an appeal in a will contest. The contestants Dean and Ross seek to have an order admitting the will of Jennie M. Sessions, deceased, executed August 2, 1950, vacated and have a will executed by her on August 25, 1949, probated in lieu thereof. From an adverse judgment, the contestants alone appeal.
Mrs. Sessions died on March 13, 1951, being then approximately 92 years of age. She left no children or lineal descendants surviving. Her heirs at law and next of kin are four nephews and two nieces, two grandnephews and a grandniece. The contestant Charles F. Dean, a son of Mrs. Sessions' deceased sister, Lydia Tuffs Dean, is one of decedent's four nephews. All of her other heirs are parties defendant. The complaint describes the contestant S. L. Ross 1 as an assignee of such interest as Charles F. Dean might have under the will of 1949.
We find it unnecessary to make further mention of the several parties and their relationship to Mrs. Sessions except those having a particular interest by reason of her will of 1950 because of Mrs. Sessions' exercise of the power of appointment conferred by the will of her brother, James T. Tuffs.
The defendant First National Bank of Portland (Oregon) is impleaded individually, as executor of Mrs. Sessions' will of 1950, and the executor named in her will of 1949, and as trustee under the will of James T. Tuffs, deceased, who died in 1947.
The defendant William Grant Tuffs is a son of James T. Tuffs, deceased, and the defendant William Sherman Tuffs is a son of said William Grant Tuffs and grandnephew of Mrs. Sessions. The defendant William Michael Tuffs, born January 12, 1950, is the minor son of William Sherman Tuffs and great-grandnephew of Mrs. Sessions. We will hereinafter refer to him as Michael.
Mrs. Sessions' sister, Minnie L. Tuffs, died in 1949 without leaving children surviving.
The will of James T. Tuffs created three trusts: one for each of his two surviving sons; that is, the defendant William Grant Tuffs and James H. Tuffs, now deceased, and one for the use and benefit of his two surviving sisters, Minnie L. Tuffs and Jennie M. Sessions. The First National Bank of Portland was nominated and functioned as the trustee of this trust for the sisters.
Upon Minnie L. Tuffs' death, the power to appoint the beneficiaries to that trust on its termination vested in the surviving sister, Jennie M. Sessions.
Referring back to the two trusts created for the sons of James T. Tuffs, it appears that his will further provided that upon the death of either son, the trust created for his benefit should be distributed to the trust created for the testator's sisters, or, in the event of their prior death, to the trust for testator's surviving son. By reason thereof, the corpus of the trust established for his son James H. Tuffs, upon the latter's death, became a part of the trust establishe for Mrs. Sessions and her sister, Minnie.
We will later turn to the 1950 will of Mrs. Sessions to discover how she employed the power of appointment conferred upon her by the will of her brother, James T. Tuffs.
The appeal of the contestants presents the following questions for our consideration:
1. Was the will of 1950 executed by Mrs. Sessions the result of undue influence and misrepresentation which should bar its probate?
2. Did her exercise of the power of appointment derived through the will of her brother, James T. Tuffs, violate the Rule Against Perpetuities?
3. In naming William Michael Tuffs in the trust which Mrs. Sessions created for his use and benefit, did she violate the express terms and conditions of the power of appointment received through the will of her brother?
The answer to the first question manifestly raises one of fact, whereas the last two involve questions of law.
An additional issue is raised by tye defendants-respondents' challenge to the court's jurisdiction to receive and consider the petition of the contestants. We will give it our first attention.
The 1950 will of Mrs. Sessions was admitted to probate on April 2, 1951. On September 26, 1951, the contestants filed their petition. This was verified by petitioner Charles F. Dean. The petition, however, alleged that Dean had assigned his interest in the Sessions estate to the other contestant, S. L. Ross, and who is, as we have noticed, the assignor's wife. Defendants on November 10, 1951, moved to strike the petition for want of a verification by a 'party in interest.' ORS 115.180. 2 On November fifteenth, and before the court ruled on the motion, the contestant Ross verified the petition by means of a supplemental verification. Later, the court denied the motion to strike. On April 7, 1953, the defendants demurred on the grounds inter alia 'that said contest was not commenced within the time limited by [ORS 115.180, supra].' The demurrer being overruled, is renewed here.
We are of the opinion that the execution of the verification to the petition by the contestant Dean, was nothing more than an irregularity, duly corrected by the supplemental verification made by the contestant Ross, and which at no time impaired the jurisdiction of the court.
We have before said that a verification is merely a formal matter and described a want of a proper verification as a mere irregularity. State v. Chadwick and Brown, 10 Or. 423, 427; German Savings & Loan Society v. Kern, 38 Or. 232, 237, 62 P. 788, 63 P. 1052; Columbia Auto Works v. Yates, 176 Or. 295, 312, 156 P.2d 561. We have also held that the allowance of an amendment to an imperfect verification rests in the sound discretion of the trial court and its action is not a subject for review on appeal. Blanchard v. Bennett, 1 Or. 328, 329, 330; Clark v. Clark, 81 Or. 405, 407, 159 P. 969. See, also, 71 C.J.S. Pleading § 358, p. 760.
The verification of a complaint speaks as of the time when the action was commenced by filing the complaint or petition and is sufficient if it was then true. Gilbert v. Branchflower, 114 Or. 508, 519, 231 P. 982; Pulliam v. Pulliam, 163 Kan. 497, 183 P.2d 220, 1 A.L.R.2d 418, 421; 71 C.J.S. Pleading § 358, § 760, supra; 41 Am.Jur. 486, Pleading, § 285 (1958 Cum.Sup. p. 65). An imperfect verification being only irregular and subject to being cured by amendment, the amendment relates back to the original verification. Board of Com'rs of Cheyenne County v. Walter, 83 Kan. 743, 112 P. 599, 600; Pulliam v. Pulliam, supra; Ruggles v. Smith, 1953, 175 Kan. 76, 259 P.2d 199, 202; Greene v. Union Pacific Stages, Inc., 1935, 182 Wash. 143, 145, 45 P.2d 611, 612; 1 Bancroft, Code Pleading Practice and Remedies (10 yr. Sup.1936), 251 § 250. Cf. Ross v. Robinson, 174 Or. 25, 30, 147 P.2d 204; Ibach v. Jackson, 148 Or. 92, 101, 35 P.2d 672; Railton v. Redmar, 209 Or. 80, 85, 304 P.2d 408.
The jurisdictional power of the court to act in the premises is determined in the first instance from an examination of the complaint or petition to discover whether it avers facts sufficient to invoke an exercise of jurisdiction of the court so as to authorize it to grant the prayer of the petition. Dippold v. Cathlamet Timber Co., 98 Or. 183, 189, 193 P. 909; E. Henry Wemme Co. v. Selling, 123 Or. 406, 416, 417, 262 P. 833; McDonough v. Southern Oregon Mining Co., 177 Or. 136, 149, 159 P.2d 829, 161 P.2d 786, 164 A.L.R. 788. Cf. Wright and Jones v. Edwards, 10 Or. 298, 303 et seq. But the verification does not constitute any part of the pleadings and cannot render it defective. 1 Bancroft, Code Pleading, 716, § 500. It adds no allegation. It tenders no issue. It is, as we have said, a formal matter, the omission or imperfection of which does not rise above the status of a mere irregularity that may be waived or cured by amendment. Its defects do not vitiate jurisdiction. In re Sullivan's Estate, 40 Wash. 202, 82 P. 297, 299; Workman v. Workman, 1934, 113 Ind.App. 245, 46 N.E.2d 718, 724.
Holding as we do that defendants' contention that the court was without jurisdiction is untenable, we now give attention to the contestants' several assignments of error.
The contestants' first proposition charges that Mrs. Sessions in making her will of 1950 was subjected to undue influence.
It is claimed by the contestants that a beneficial interest accrued to the bank by reason of its nomination as trustee for the trust created for the minor, William Michael Tuffs.
Every will is the product of some kind of influence. In re Kelly's Estate, 150 Or. 598, 617, 46 P.2d 84. But the undue influences against which the law inveighs are the improper influences to control the disposition of one's property. It is not a term which can be specifically defined. In re Reddaway's Estate, Or.1958, 329 P.2d 886, 889. The charge, when advanced, as here, poses the question: '* * * has the influencer by his conduct gained an unfair...
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