Urich's Estate, In re

• Decision Date: 02 April 1952
• Citation: 194 Or. 429,242 P.2d 204
• Parties: In re URICH'S ESTATE. JURIC et al. v. SOLARI.
• Court: Oregon Supreme Court

Page 204

242 P.2d 204

194 Or. 429

In re URICH'S ESTATE JURIC et al. v. SOLARI.

Supreme Court of Oregon.

Argued and Submitted March 11, 1952.

Decided April 2, 1952.

Donald H. Joyce, of Portland, argued the cause and filed a brief for appellant.

Peter A. Schwabe, of Portland, argued the cause for respondents. With him on the brief was C. T. Haas, of Portland.

Before BRAND, C. J., and ROSSMAN, LATOURETTE, WARNER and TOOZE, JJ.

TOOZE, Justice.

This is a proceeding to contest the alleged will of the late Theodore Urich, more commonly known as Ted Urich, who died at Portland, Oregon, on January 4, 1949. The contestants are Filip Juric, a brother, Mate Juric, a brother, Ante Dzelalija, Filip Dzelalija, and Ante Juric, nephews, of decedent. Ante Dzelalija and Filip Dzelalija are the sons and sole surviving issue of Maria Dzelalija, a predeceased sister of decedent, and Ante Juric is the son and sole surviving issue of Sime Juric, a predeceased brother of decedent. The proponent is Albert Solari, the sole beneficiary under the alleged will, and also executor of the estate.

On January 10, 1949, there was admitted to probate in the matter of the estate of Theodore Urich, deceased, by the circuit court for Multnomah county, probate department, an instrument purporting to be the last will and testament of said decedent, and Albert Solari was named executor thereof. Letters testamentary were issued him in that behalf. Said purported will is in words and figures as follows:

'Last Will and Testament

'Know All Men, That I, Theodore Urich, of over the age of twenty-one years, being of sound and disposing mind and memory, and not acting under duress, menace, fraud or undue influence of any person whatsoever, do make, publish and declare this my Last Will and Testament in manner and form following, to-wit:

'First: I direct that my just debts and funeral expenses be promptly paid, and direct my executor to treat as an obligation of my estate, and to pay without any apportionment thereof, all estate, inheritance or other death taxes or duties imposed and made payable by reason of my death by the laws of the United States, or of any state, territory or country. If any other person shall pay any such tax, my executor shall reimburse such person;

'Second: All the rest, residue and remainder of my estate of whatsoever kind and wheresoever situate, I give, devise and bequeath unto by beloved friend, Albert Solari, of Milwaukie, Oregon;

'Third: It is my will and I hereby nominate the said Albert Solari to be executor of this my last Will and Testament, and I hereby revoke any and all wills or codicils by me heretofore made, declaring this and none other to be my last Will and Testament, and I direct that the said Albert Solari be permitted to act as such executor without bond or any undertaking of any nature whatsoever.

'In Witness Whereof, I have hereunto set my hand and seal this 31st day of December, 1948, at Portland, Oregon.

'[Sgd.] Ted Urich (SEAL)

'The foregoing instrument consisting of one page was on this 31st day of December, 1948, in our presence, signed, published and declared to be his Last Will and Testament by Theodore Urich, who was at that time of sound and disposing mind and memory, and not acting under fraud, duress or undue influence of any person whomsoever.

'In Testimony Whereof, We, at his request, and in his presence, and in the presence of each other, have subscribed our names hereto as witnesses.

'[Sgd.] Melvin C. Lewis

Residing at: ________

[Sgd.] Wesley G. Lamer

Residing at: Portland, Ore.'

In their petition to contest the will, petitioners alleged: (1) that decedent did not have testamentary capacity at the time the instrument was executed; and (2) that the instrument had been executed by decedent as the result of undue influence exercised upon him by the said Albert Solari. Upon the trial, petitioners made no attempt to establish testamentary incapacity on the part of decedent, but confined their attack to the charge of undue influence. The trial court found that undue influence had been exercised by Albert Solari, and that the purported instrument was the result of such undue influence, and was, therefore, void and of no effect. A decree was entered setting aside the probate of said purported will and revoking and cancelling the letters testamentary theretofore issued to the said Albert Solari. Proponent appeals.

The evidence shows that decedent was a native of Yugoslavia and came to this country in 1913, locating in Portland. At that time the parents of Albert Solari were operating a boarding house in Portland, catering to former residents of Yugoslavia. Decedent boarded at the Solari home for a period of approximately 20 years, when, because of trouble he had with proponent's mother, he was, according to proponent, 'kicked out'. Over that period of 20 years decedent was in and out of Portland. For the first few years he followed the occupation of logging, being away in the logging camps for months at a time. In later years he worked in foundries within the city of Portland. Albert Solari was approximately two years of age when decedent first commenced to board with the Solari family. For more than 16 years immediately prior to his death, decedent lived and boarded elsewhere within the city of Portland.

However, Albert Solari testified that the friendly relations existing between him and decedent continued over the years, and that he habitually referred to decedent as 'Uncle Ted', though having no blood relationship with him. He testified:

'Q. I see. Did you see him since he left your mother's home? A. I seen Ted every week. The only time I didn't see him was the three years that I was overseas.

'Q. Well, did you call on him or did he call on you? A. Well, either way. But he was mostly out to my house, because I have a home and I have a family, and he liked to come out there. He lived in these rooming houses over town, and he enjoyed it out there.

'Q. Well, what was the nature of his visits? Did he stay for dinner, anything like that? A. Oh, he stayed over the week ends.

'Q. He actually slept there then? A. Oh, yes.

'Q. Over what period of years did that take place? A. Well, I started to build my home in 1934 in Milwaukie. I had sixteen cherry trees on those two lots that I bought there. Ted was only working about two and three days a week. Days were pretty tough in the foundries then and they didn't have much work. So Ted come out there and grubbed out all sixteen of those trees, and even leveled the property to start to build my home.

'Q. Did you pay him for that? A. No, sir. I never paid him a penny.

'Q. Well, did he come out to your home any time other than week ends? A. Any time that he didn't work you would always find him out there.

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'A. In the year 1948?

'Q. Yes. A. Oh, yes.

'Q. How often would you say he visited you? A. Well, he visited me every week as much as possible, unless I was on my vacation or something. We even went on vacations together if we could manage to get them together.

'Q. You went on vacations together? A. If we could manage to, yes, sir.

'Q. Where did you go on these vacations? A. Most of the time we'd take a trip down to the beach, and we would cut down to Eugene and stuff and head east on the McKenzie and up around through Redmond. I am quite a fisherman, and he used to like to go fishing with us.

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'Q. Did you consider him a particularly close friend? A. Did I consider him a close friend?

'Q. Yes. A. Well, I think for somebody that didn't mean anything to me, I think he was one of the closest in accordance to relationship.

'Q. Did you have any other name for him that you called him? A. We just called him Uncle Ted. That's all. Even my little boy calls him that.

'Q. Did you know he wasn't your uncle? A. Yes; I did.

'Q. You continued to call him Uncle Ted even though you knew he wasn't your uncle? A. That's right.'

The evidence discloses that, before World War II, decedent did not correspond with his family in Yugoslavia. But following the termination of the war, a correspondence was begun and continued between him and his brothers in Yugoslavia and, in particular, with his nephew Ante Juric. Ted Urich could neither read nor write and, in writing to his relatives and in having their letters read to him, was forced to rely upon two of his intimate friends, Matt Celic and Blaise Turich. Turich testified that he had written 40 or 50 letters for decedent, addressed to his brothers and nephew; Celic wrote two. Both Celic and Turich testified to reading many letters received by Urich from Yugoslavia. Decedent sent money, clothing, and other items to his kin. He manifested a special interest in his nephew Ante Juric. As to this, Blaise Turich testified as follows:

'Q. Tell me this: Did Teddy say anything to you about his family and how he felt about them? A. Oh, he did. He talked about his family all the time, but he pay more attention and he like his nephew more than anybody else in the world.

'Q. Which nephew is that? A. Tony. He tell him not to go into the world blind, you know, to read and write. You know, go to school. He says, 'If he listen to me, and he wants to go to college and he wants a college education, I know my brother, his father, can't afford to spend the money for him, but I will.' He said, 'I don't care if it costs me the last penny I have got, but I want him to be a man.'

'Q. That is the nephew, Ante, to whom some of these things have gone? A. He says, 'Old guys like I am, we going to go to Jesus pretty soon, we don't need anything, but this young man, I want to make a man of him.' He told me that many times.'

As typical of the letters written by decedent to his brother Filip and to his nephew Ante Juric, we set forth one written on October 11, 1947, as follows:

'My dear Brother:

'I received your letter of September 22, 1947, and understood everything you write. I have an idea up to a certain...