Toomey v. Moore
| Citation | 325 P.2d 805,213 Or. 422 |
| Parties | R. J. TOOMEY, as administrator with the will annexed of the estate of Hulda Hollander, deceased, Appellant, v. Floyd D. MOORE and Marion C. Moore, husband and wife, Respondents. |
| Decision Date | 21 May 1958 |
| Court | Supreme Court of Oregon |
Floyd D. Hamilton, Portland, argued the cause for appellant. On the brief were Theodore Opsund and Raymond G. Brown, Portland.
Samuel B. Weinstein, Portland, argued the cause for respondent. With him on the brief was Floyd D. Moore, Portland.
Before PERRY, C. J., and ROSSMAN, BRAND and McALLISTER, JJ.
This suit was instituted by Hans O. Sater, as guardian of the person and estate of Hulda Hollander, an incompetent, against Floyd D. and Marion C. Moore, husband and wife, to recover from said defendants certain property transferred to them by said incompetent including her home, household furnishings and effects and bank account.
The trial court entered a decree giving plaintiff judgment against defendants for $4,928.89, requiring defendants to deliver to the guardian all of the household furnishings and other personal property, but finding that the deed conveying the home to defendants was a valid conveyance. From this decree the guardian has appealed contending that the court erred in holding that the deed was valid, in refusing to charge the defendant with interest and in denying the plaintiff costs in the trial court.
During the pendency of this appeal Hulda Hollander died and R. J. Toomey, as administrator with will annexed of her estate, has been substituted as appellant in lieu of said guardian.
The defendant, Floyd D. Moore, is an attorney who has practiced law in Portland for more than 30 years. He first met Hulda and her husband, Emil Hollander, in 1927 when they consulted him about the purchase of a parcel of real property. From time to time thereafter the Hollanders consulted Moore when they needed the advice and assistance of an attorney and over the years the relationship of attorney and client developed into a personal friendship. Moore testified that when the Hollanders were temporarily in financial need, he loaned them small sums of money and guaranteed payment of their debts. The relationship between the Hollanders and Moore was described by him as very intimate.
Emil Hollander died in 1950. The Hollanders had no children and Hulda's only relative was a brother from whom she had not heard in many years. After Emil's death, Moore visited Mrs. Hollander with increasing frequency. When he had occasion to be in the vicinity of her home, Moore would drop by and take her along with him for a ride in his automobile. Hulda called at his office frequently during 1953 and 1954. Since she had no particular need for legal advice these calls apparently were merely friendly visits.
Moore testified that whenever the weather was bad during the period from the fall of 1952 until the spring of 1954, he went to Mrs. Hollander's home on either Friday evening or Saturday morning to take her shopping for her supplies for the coming week. He testified that 'ofttimes when I went on a Saturday I would go at ten or in the late morning and we would go shopping and she would buy her supplies for the coming week, and we would go back and have lunch together, and on many of those occasions I worked around the house and the yard.' Except when they met in public or in his office, Moore and Mrs. Hollander greeted each other with a kiss or a caress.
The relationship between Moore and Mrs. Hollander during the period involved in this case is summarized by Moore's testimony that Hulda had absolute trust, confidence and faith in him both as a lawyer and as a friend and would, in childlike fashion, accept his suggestions and advice.
On August 9, 1951, Mrs. Hollander executed a will naming as the sole beneficiary of her estate Phillip Ellman, who had formerly been pastor of the Augustana Lutheran Church in Portland but was then living in Berkeley, California. Floyd Moore, who had drafted the will, was named executor and referred to by the testator therein as her friend and attorney.
On September 24, 1953, Mrs. Hollander executed a codicil to her 1951 will by which she bequeathed the sum of $1,000 to Floyd Moore. Moore dictated this codicil to his secretary but left his office while the codicil was executed. The codicil was witnessed by Olive D. Powne and Lillian Robinson, the two secretaries who were employed by Moore and three other attorneys with whom he shared a suite of offices.
On October 19, 1953, Mrs. Hollander executed a new will leaving all of her property to Floyd Moore except her piano which was bequeathed to her church. This will was drafted by Moore but was executed in the office of Arthur H. Lewis, one of the other attorneys sharing the suite of offices. The will was witnessed by Mr. Lewis and the secretary Lillian Robinson.
On October 28, 1953, Mrs. Hollander, who was then about 71 years old, executed a bargain and sale deed conveying her home to Floyd D. and Marion C. Moore, as tenants by the entirety, but reserving to herself a life estate in the property. Moore testified that about a week before the deed was executed Mrs. Hollander had first told him of her intention to deed her home to him and his wife. He refused to prepare the deed at that time and told Mrs. Hollander to think it over and if she still wanted the deed drafted to go to someone else. The drafting and execution of the deed were described by Mr. Moore as follows:
The deed was recorded on the same day.
On November 2, 1953, a savings account in the sum of $5,342.10 which Mrs. Hollander had in the Oregon Mutual Savings Bank was changed to a joint account with Floyd Moore. On November 19, 1953, $5,000 was drawn from that account and deposited in the Rose City Branch of the First National Bank of Portland where Mrs. Hollander also had a small savings account. This account was also changed on that date to a joint account with Floyd Moore. At the same time Moore was given a key and joint access to Mrs. Hollander's safety deposit box in which they placed the pass book for the savings account. On January 25, 1954, the account in the Oregon Mutual Savings Bank was closed and the balance transferred to the account in the Rose City Branch of the First National Bank.
On August 7, 1954, Mrs. Hollander left by train for Duluth, Minnesota, to visit Rudolph Hollander, the brother of her deceased husband. All arrangements for this trip had been made for her by Mr. Moore. Moore testified that he took Mrs. Hollander to the train and that as he was bidding her goodbye, the following occurred:
Defendants contend that by handing Moore the key to her home and lock box with the statement that 'This is yours', Mrs. Hollander thereby transferred to defendants the savings account and the household furnishings and other personal property situated in her home.
Upon her arrival in Duluth two days later, Mrs. Hollander was in a badly confused mental condition and in response to a telephone call from her relatives, Mr. Moore went to Minnesota and brought her back to Portland.
On August 16, 1954, Mr. Moore withdrew from the Rose City Branch of the First National Bank all of Mrs. Hollander's savings account in the sum of $5,006.03 and placed the funds in a joint savings account with his wife in another bank nearer the Moore home.
Upon the petition of Mr. Moore and another person, Hulda Hollander on August 24, 1954, was committed by the circuit court of Multnomah county to the Eastern Oregon State Hospital as a mentally ill person.
On August 26, 1954, Mr. Moore filed a petition in the circuit court for Multnomah county praying for his appointment as guardian of the person and estate of Mrs. Hollander. A number of Mrs. Hollander's friends and neighbors protested the appointment of Moore as her guardian and after a hearing, Hans O. Sater, one of the protestants, was on November 23, 1954, appointed guardian. Thereafter, on November 29, 1954, the said guardian brought this suit to cancel the deed and recover the bank account and the personal property.
Although the degree of her senility can not be stated with exactness, there was substantial, competent and convincing evidence that Mrs. Hollander during the period material to this case was suffering from senile dementia. This senility was noticeable long before the deed in question was executed on October 28, 1953 and culminated in the commitment of Mrs. Hollander to the mental hospital in August, 1954. This evidence was given by disinterested friends and neighbors and by Dr. Henry H. Dixon, an eminent physician and psychiatrist.
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