Wendl v. Fuerst

• Court: Oregon Supreme Court
• Writing for the Court: RAMSEY, J.
• Citation: Wendl v. Fuerst, 68 Or. 283, 136 P. 1 (Or. 1913)
• Decision Date: 11 November 1913
• Parties: WENDL et al. v. FUERST et al. [d]

136 P. 1

68 Or. 283

WENDL et al. v. FUERST et al. ^[d]

Supreme Court of Oregon

November 11, 1913

Department 1.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Will contest by John B. Wendl and another against Rt.Rev. Placidus Fuerst, Abbot of St. Benedict's Abbey of Mt. Angel, Or and others. Instrument admitted to probate, and contestants appeal. Affirmed.

Frank Holmes, of Salem, Jas. L. Conley, of Portland (Conley & De Neffe, of Portland, on the brief), for appellants.

M.E Pogue, of Salem (W.T. Slater, of Salem, on the brief), for respondents.

RAMSEY J.

Rev Emmeran D. Wendl, a Roman Catholic priest, died at Mt. Angel Marion county, Or., on the 23d day of November, 1910, at the age of 67 years. He had never been married, and he left surviving him as his sole heirs at law the contestants, John B. Wendl, his brother, and Regina Wendl, his sister. The contestants are not residents of this state. They, too, are members of the Roman Catholic Church.

Rt.Rev. Placidus Fuerst is the abbot of St. Benedict's Abbey, at Mt. Angel, and Very Rev. Adelhelm Odermatt, O.S.B., is the prior of said abbey.

The decedent, Emmeran D. Wendl, was an oblate but not a member of the Order of St. Benedict. He made his home there for about two years immediately prior to his death, although he had done some clerical work during that time in Portland. While he was at work in Portland, he was stricken with nervous prostration caused by overwork. He was in St. Vincent's Hospital for a while, but returned to the abbey at Mt. Angel, and became an oblate of the Order of St. Benedict, and remained at the abbey until his death, which occurred November 23, 1910.

The decedent left no real estate but owned, when he returned to the abbey from Portland, a $3,000 mortgage and several hundred dollars in money, deposited in banks, and a $300 life insurance policy, and a small library. The evidence fails to show that he had any other property. Jas. L. Conley was appointed administrator of the estate of the decedent by the county court of Marion county, and letters of administration upon said estate were issued to him.

On February 8, 1911, Very Rev. Adelhelm Odermatt, prior of said abbey, presented to the county court of Marion county his petition in due form, alleging inter alia that said decedent, Rev. Emmeran D. Wendl, died at the Mt. Angel Abbey, Marion county, Or., on the 23d day of November, 1910, and that he executed a certain instrument of writing purporting to be his last will and testament, dated November 17, 1910, which was duly subscribed, executed, and witnessed, as required by law. The witnesses who subscribed said will as attesting witnesses being Rev. Thomas Meier, O.S.B., and Rev. Urban, O.S.B., both residing at said abbey. Said petition alleged all the facts necessary to be set forth in such a petition and annexed thereto a copy of said will and prayed for an order of said county court admitting said will to probate. Said petition asked also that Very Rev. Adelhelm Odermatt, prior of said abbey, who was named in said will as executor thereof, be appointed executor of said will, without bonds, according to the terms of said will, and praying also for an order revoking the appointment of said Jas. L. Conley as administrator of said estate, etc. The county court of Marion county admitted said will to probate in common form and made an order revoking the letters of administration granted to said Jas. L. Conley and generally granted the prayer of said petition.

On March 31, 1911, John B. Wendl and Regina Wendl, as the heirs at law of said decedent, filed in the county court of Marion county their petition in due form for the contest of said will, alleging the necessary facts for such contest. As grounds for such contest, said petition alleged that said instrument, purporting to be the will of said decedent and admitted to probate as stated, supra, was not the will of the decedent; that he did not sign said instrument; that it was not witnessed, signed, or published by him as his will; that it was not attested at his request or in his presence; and that it was not executed by him at all. The said petition for the contest of said will alleged also that the name of the decedent was forged thereto. It also alleged that the decedent was in such a condition mentally that he was unable to comprehend the meaning, scope, or effect of said instrument, and that said will was procured to be so executed by the decedent by the undue influence of the proponents, etc. The proponents denied the material averments of said petition, and then set up the due execution of said will and asked that it be re-probated in solemn form.

The evidence was taken in the county court, and that court made and entered an order holding that said will was duly executed and readmitting said instrument to probate as the last will and testament of said decedent, etc. The contestants appealed from said order to the circuit court of Marion county, and that court affirmed the order of the county court admitting said instrument to probate. The contestants appeal to this court.

Owing to the large amount of evidence, it is impracticable to do more than to refer to the substance of it.

1. The proponents of the will show by many witnesses that the decedent, during his last illness, and at the time that the will was executed, was of sound and disposing mind and memory, and the contestants offered no evidence on that point. There was no evidence offered tending to prove that the execution of said will was obtained by undue influence or fraud.

The sole question for determination is: Did the decedent execute as his last will and testament the paper propounded by the respondents and which was admitted to probate by the county court of Marion county? This document is in proper form and fair on its face.

The burden of proof is on the proponents of the will to establish, by a preponderance of the evidence, every fact necessary to show the proper execution of a valid will. Hubbard v. Hubbard, 7 Or. 44; Duper v. Werts, 19 Or. 126, 23 P. 850; Mendenhall's Will, 43 Or. 548, 72 P. 318, 73 P. 1033. To be valid, a will must be in writing, signed by the testator, or by some other person under his direction in his presence, and attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. L.O.L. § 7319.

Attesting witnesses must sign the will as witnesses in the presence of the testator. The attesting witnesses to this will are Thomas Meier, O.S.B., and Urban Fisher, O.S.B., both residing at Mt. Angel. The third and fourth paragraphs of this will are as follows:

"Thirdly. In consideration of Rt.Rev. Abbot Placidus Fuerst and his consultors having given me a comfortable home, for life, to take care of me in days of health and sickness, in life, and after death, to treat and bury me like one of their own community, I hereby give and bequeath to the said Rt.Rev. Placidus Fuerst, abbot of St. Benedict's Abbey of Mt. Angel, Oregon, all my property and belongings, among which is one mortgage of three thousand dollars ($3,000.00) which I hold in the city of Milwaukee, Wis.

"Fourthly. My brother John B. Wendl of Milwaukee, Wis., and my sister Regina Wendl of Chicago, Ill., shall each receive fifty dollars ($50.00)."

When the will was executed there were present in the decedent's room with him at the abbey Thomas Meier and Urban Fisher, the attesting witnesses, and Very Rev. Prior Adelhelm Odermatt. Each of these persons was sworn, and each testified in detail as to the execution of the will. The evidence of these witnesses shows that the decedent desired to execute a will and that Father Urban was sent for to write the instrument. He was a notary public and accustomed to writing wills, and he had printed forms for wills. After Father Urban arrived in the decedent's room, the latter dictated the contents of the will, and Father Urban wrote the instrument in the presence of the decedent and of the attesting witnesses. The decedent then subscribed his name to the will in the presence of said witnesses and declared it to be his last will and testament and requested the two witnesses to sign the will as attesting witnesses, and they so signed in the presence of the deceased and of each other. If the evidence of these witnesses is true, the will was duly executed.

After the will was executed, it passed into the hands of Father Jerome, the secretary of the abbey, for safe-keeping. A few days after the will was made, the decedent asked Father Jerome whether he had seen his will, and Father Jerome told him that he had read it, and this witness says that the decedent, when he told him that he had read his will, expressed his satisfaction that he had turned over everything to the abbey and said that he could now die satisfied. Father Jerome testified that he knew the decedent's handwriting, and that the signature to the will was his genuine signature.

Benedict Hinz testified that the decedent told him, a few days before his death, that he was getting pretty weak and that he should like to see Father Prior or one of the superiors, saying that he had some papers to sign yet. The deceased told this witness that he would let the abbey have whatever property he had left. A few days before his death the decedent told Dr. J.E. Webb, his attending physician, that he expected to die and that he had settled his business.

Rt.Rev. Abbot testified that he was acquainted with the handwriting of the deceased, and that the name of the decedent at the end of the will was the genuine signature of the deceased. The decedent talked with him several times about making a will and talked to him about it after he had made it.

Joseph Keber, cashier of...