Buren's Will

Mr. Justice Hailey delivered the opinion of the court. The only question involved upon this appeal is the testamentary capacity of the deceased at the time of the execution of the will. It is contended on the part of the contestant that by reason of the morphine and other drugs administered to his father during his last illness, together with the progress of the disease from which he was suffering, he was not of sound and disposing mind and memory, and the instrument is therefore void. To support this contention, the contestant relies almost wholly upon the opinion testimony of experts versed in mental disorders, only two of whom actually saw the testator during his last illness. One of these called on the evening of the 17th of February, the day before the will was written, when the testator was in a stupor from the effects of morphine given [310] him during the day, and did not arouse him so as to have any conversation with him, while the other was his attending physician, who ordinarily made two calls a day, one in the morning and one in the evening, and was not present at the time of the execution of the will. The other expert witnesses based their opinions upon a reading of the testimony of these two. The appellant and proponent contends that her father was of sound and disposing mind and memory at the time of the execution of the instrument, and relies upon the testimony of the subscribing witnesses and of friends and acquaintances who saw and conversed with her father, both before and after the execution of the instrument. We have carefully read and considered all the testimony in the record, and also inspected the original will, which was submitted for that purpose. The testimony of friends and associates of the deceased shows that he was a careful, prudent and capable business man, who kept close watch over all his affairs, and fully understood all his business dealings. The evidence also discloses that for some time prior to the execution of this instrument he had been talking about making a will, and had told,< former members of his household what he purposed doing with a part of his property, and after, its execution again told at least two persons besides his daughter what disposition he had made of parts of his property by will, specifying, the particular property and to whom it was given. On February 16, 1904, he sent for his attorney, Mr. W. H. Holmes, of Salem, whom' he had frequently consulted in legal matters, and requested him to draw his will and gave him directions as to the disposition he desired to make of his property, all of which was noted down by his attorney, who returned the next day to draft the will, but, no witnesses being present, the matter was deferred until the •following day, when N. J. Judah, a personal friend of the [311] deceased, was present to act as a witness, and also acted as scrivener in .drafting the will, writing from dictation given him by Mr. Holmes, and in doing so sat near the testator, who was bolstered up in bed, and who, as testified to by Mr. Holmes, “paid very close attention to what was going on and interrupted me a time or two in some formal matters or unimportant matters, showing that he was paying very close attention to what I said.” After the will was written it was carefully read to the testator by Judah in the presence of Mr. Holmes and Miss Cotter, the nurse. He then signed it and declared it to be his will, and requested the persons present to witness it as such, and after they had done so he asked his attorney, as testified to by the witness Judah, “if in the event of recovery from that illness, if the making and declaration of this will would hinder or prevent him from making any other disposition of his property, if he wanted to sell it, or anything else.” His daughter, Leda, also testified that later on the same day he asked her to read the will, and when she had done so asked her if it was satisfactory, and “talked about it the next day” and “knew exactly what was in the will,” and “mentioned each particular instance.” Mrs. Rachel Holman, a friend and former member of the family, testified that in the evening after the will was made she heard the old gentleman and his son, Max, talking, and “heard Max say,‘Has Leda been any nearer and dearer to you that you should favor her.’ The old gentleman was indignant, and he said: ‘Max, don’t you think I am in my right mind ? Don’t you think I know what I want to do with my property ?’ He seemed to be angry because Mr. Burén was trying to impress upon him that he was as dear to him as T^eda.” She further testified that on the morning following the execution of the will she called and conversed with Mj. Burén, and he mentioned the bequest of $250 to her baby, Carolyn, and asked her to remind the child of the bequest, [312] and that it came from him, whenever she was old enough to appreciate it. The only testimony given by the contestant himself regarding his father’s physical and mental condition is the following: “Q,. Did you see your father during his last illness or shortly preceding his death ? A. I saw him during his sickness ; yes. Q,. State to the court the condition of his hearing, and confine your testimony solely to that one matter. A. My father’s hearing was always bad. and he was very inattentive, making it harder for him to hear a person than one who had the same hearing. At a number of' times I noticed that when it came to giving his medicine that Miss Cotter had to talk very loud to him, and I had to talk loud to him, and had to repeat it a number of times. It was practically impossible to carry on an extended conversation with him. Q,. What was the reason of that ? A. He was dull; his mind seemed dull. Q,. I mean about his hearing? A. Well, the reason that it was so hard to carry on a conversation with him was because his hearing was so hard, and he did not look directly at you, and he had a poor conception of the reading of one’s lips if he did look at you.” He does not contradict the testimony of Mrs. Holman or attempt to detail the mental condition'of his father, although he visited and talked with him on the day the will was signed and on the preceding day, and saw him a number of times during his last sickness. Personal friends, who had been acquainted with him for years and who visited with him both before and after the execution of the will, testified that they found him suffering physically, but that his mind was clear, and he talked rationally about business and other matters and was in his normal mental condition, which was that of a careful [313] and cautious man of good business capacity. Holmes and Judah, the subscribing witnesses, both testified that his mind was perfectly clear when the will was drafted and executed, and the attending circumstances as detailed by them and the nurse, together with the testimony of other witnesses who saw him before and after the execution of the will, fully establish the fact that he understood what he was doing at the time he executed the will, and had full knowledge of his property and how he wished to dispose of it among those entitled to his bounty, and this was “sufficient testamentary capacity, notwithstanding his old age, sickness, debility of body or extreme distress,” within the rule now firmly established in this State and recently reiterated by Mr. Justice Moore in the case of Ames’ Will, 40 Or. 495-504 (67 Pac. 737), where all the decisions of this court upon this subject are collated. The decision of the circuit court will therefore be reversed, and this cause remanded for such further proceedings as may be proper, not inconsistent with, this opinion. Reversed.