Stevens v. Myers

• Court: Oregon Supreme Court
• Writing for the Court: BURNETT, J. (after stating the facts as above).
• Citation: Stevens v. Myers, 62 Or. 372, 121 P. 434 (Or. 1912)
• Decision Date: 27 February 1912
• Parties: STEVENS v. MYERS.

121 P. 434

62 Or. 372

STEVENS v. MYERS.

Supreme Court of Oregon

February 27, 1912

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Petition to contest a will by Georgia Frances Stevens against George Tobias Myers, Jr., proponent. From a judgment for contestant proponent appeals. Reversed and remanded.

On July 22, 1907, upon the petition of the defendant here, the county court of Multnomah county, Or., admitted to probate, in common form, a paper, purporting to be the last will and testament of George T. Myers, and a codicil annexed thereto and directed that letters testamentary issue to the defendant upon his taking and filing the oath required by the statute. The will itself was dated May 31, 1902, and, in substance devised to the plaintiff, Georgia Frances Stevens, daughter of the decedent, the sum of $20,000, to be paid to her when she should arrive at the age of 45 years. The remainder of the estate was devised to the defendant, his son, who was nominated executor of the will, to serve without any bond or undertaking. By the codicil, dated December 3, 1902, it was provided that, in case the son should die before the death of the testator, the portion of the estate bequeathed to him should be distributed in a certain manner therein specified but not now important for the decision of this case, because the testator died before the defendant.

On December 19, 1907, the plaintiff filed her petition and complaint in the county court, reciting the order admitting the alleged will to probate, and, as appeared, in substance, in the original petition for the probate of the will, she alleged that the testator, George T. Myers, died in Seattle, Wash., July 12, 1907, being at the time of his death a resident and inhabitant of Multnomah county, Or., leaving an estate therein, and that at the death of said George T. Myers he left surviving him two children, who were and are his only heirs at law, viz., Georgia Frances Stevens, the plaintiff, and George T. Myers, Jr., the defendant.

The complaint then alleges "that said will is not now and never was the last will and testament of the said George T. Myers, deceased; that at the time of the signing of said writing by the said George T. Myers, and for some time prior to the execution of the pretended will, the said George T. Myers was not of sound and disposing mind or memory, and that during all of said time that George T. Myers labored under the insane delusion that his wife, who died a natural death in January of the year 1902, had been foully murdered, and that your petitioner, the daughter of the said George T. Myers, had in some manner given aid and comfort to those whom he, the said George T. Myers, insanely imagined to be the persons who had murdered his wife; that it was not true that the wife of the said George T. Myers had been murdered, nor was it true that your petitioner had given any aid or comfort to those who, the said George T. Myers imagined, had committed the crime of murder upon his wife, but such extravagances had no existence whatever, except in the diseased and morbid condition of the mind of him, the said George T. Myers, yet such insane delusion so far had control of him, the said George T. Myers, that it was impossible to reason him out of such conceptions, and that in whatever he did with reference to your petitioner the said George T. Myers was governed and guided by said delusions." The allegation quoted was denied by the reply. At the hearing, after the testimony had been taken, on motion of the plaintiff, her complaint was amended, so as to add to the allegation concerning the delusion, said to have been suffered by the testator, these words, "and that your petitioner was criminally intimate with one Dr. Samuel A. Robinson," and further to her disavowal, the words, "nor was she criminally intimate with the said Dr. Samuel A. Robinson, nor with any one," and it was ordered that these new allegations be considered as denied by the defendant and proponent. On October 24, 1908, the county court entered an order and decree to the effect that the order admitting the writing to probate as a last will and testament of the decedent should be set aside and held for naught. On appeal to the circuit court of Multnomah county, the decision of the county court was affirmed June 13, 1910. The defendant and proponent appeals.

Joseph Simon and M.L. Pipes (Dolph, Mallory, Simon & Gearin and Martin L. Pipes, on the brief), for appellant.

C.W. Fulton and H.H. Northup (Henry E. McGinn and H.H. Northup, on the brief), for respondent.

BURNETT, J. (after stating the facts as above).

The general charge is that the decedent lacked testamentary capacity, and the specification is that he labored under an insane delusion. At the hearing, no effort was made to establish a general insanity of the testator. The principal endeavor of both parties was to establish or overturn the averment of delusion already mentioned.

Sallie S. Myers, wife of the decedent, was born October 21, 1845, and died January 12, 1902. The testator himself, George T. Myers, was born October 30, 1836, and died July 12, 1907. The will in question was made May 31, 1902, and the codicil December 3, 1902. The testator lived 5 1/2 years after his wife, and almost that long after making his will, and, as disclosed by the testimony, was engaged in active business, managing large affairs almost to the very date of his death. The allegation of the complaint, to the effect that his estate was of the probable value of $300,000, is not contested by any evidence. It is abundantly established by the testimony that the testator was devotedly fond of his wife; that for a period of nearly 40 years they lived together happily as man and wife; and that he relied upon her, not only to manage her household, but also to advise him in almost every business transaction. He was addicted to the use of intoxicating liquors, and became, as stated by one witness, a "seasoned drinker." It does not appear that he was ever so drunk but what he could walk and attend to business. They had but two children, the parties to this suit. He was very fond of the contestant, educated her at considerable expense, and, both before and after her marriage, sent her East for medical treatment, paying the expenses of her journey in every instance. When she married, he gave her $5,000 with which to furnish her residence. He afterwards bought a large dwelling house in Portland, and allowed her and her husband to occupy it until April 1, 1902, when he began to charge rent at the rate of $60 per month, as will be hereafter noticed. In February, 1896, the testator and his wife each made a will, bequeathing to the other all the property owned by the testator in those wills, with provisos that in case of the death of the other spouse before the death of the testator all the property should descend in equal shares to the two children. Except for the transposition of testator and beneficiary, the two wills were identical in terms. Under her will, therefore, the property of Mrs. Myers passed to her husband at her death.

In 1882, the contestant, then a schoolgirl about 17 years of age, was threatened with some pulmonary trouble. For the benefit of her health, her father sent her East to visit relatives, who took her to consult the Dr. S.A. Robinson, mentioned in the pleadings, who was then practicing at some place on Staten Island, N.Y. She secured board near his residence, took his treatment for several months, and then returned to Portland, Or. She went again for treatment in 1886, and this time took up her abode in the doctor's household, again remaining under his care for several months. This led to correspondence between the doctor and the contestant's parents. They finally went East themselves in 1887, became personally acquainted with Robinson, and visited at his house. In 1893 the contestant was visiting in New York in company with her parents, and again met Robinson. Later on he visited the contestant's parents, and also visited at her home in Portland. Robinson had been divorced from his wife for many years, and before the marriage of the contestant he and his parents maintained a household near New York City; but after the death of his mother he removed to Tacoma Park, a suburb of the city of Washington, where he kept up a domestic establishment of his own. His son then lived in Baltimore, but, with his wife, was part of the time at the physician's home in Tacoma Park, and besides that Robinson's man and the same people that had been in the home when the contestant's parents were visiting were in the Tacoma Park household. In 1899 the plaintiff again visited Robinson and family at Tacoma Park, and remained there until some time in July, 1900. During her stay there, she visited Washington and various other places with Robinson, all, of course, with the knowledge of her husband and her parents. Robinson removed to Portland, Or., in 1900, coming there in company with the contestant on her return. He immediately installed his household furniture and library in the home of the contestant, and continued to reside with her and her husband until some time after the death of her mother. He made, at his own expense, sundry changes in the house bought by the decedent for the use of contestant and her husband, and shared with them the expense of housekeeping there. The decedent took great pains to introduce Robinson to various leading men with whom he was acquainted, and spoke very highly of him and his attainments as a physician. The family, especially the contestant and her mother, showed him great attention.

In the early part of July, 1901, the decedent and his wife, together with the contestant and Robinson, went to Astoria on an...