Simpson v. Durbin

Mr. Justice Eakin delivered the opinion of the court. There are several assignments of error, but they are all answered by the decision of two questions, namely: (1) Did the decedent write the will? and (2) Did he acknowledge to the witnesses that it was his will or an instrument he executed? 1. The witness to the will, Hixon, testified: “That decedent came to his house in East Salem in a buggy. I rode down town with him, got along about the State House, and he asked me ‘if I would sign the statement he had written out; what he wanted to do with his property. He said something might happen to him.’ That the decedent read the statement over to him and he signed it in his presence in Derby’s office.” Decedent then went to the stable of C. W. Yannke and said — 521 — to him: “Charlie, I have a paper here for you to sign as a witness. Will you sign as a witness?” Tannke took the paper and went into the stable office and signed it. In the light of the description of the relative positions of the witness and the decedent, by this witness and another, there can be no doubt but that Tannke was within the view of decedent when he signed the paper. Decedent was at the door of the office and could see the desk, which was directly opposite the door and not more than eight feet away, and he was within hearing of Tannke. The evidence shows that the witnesses do not pretend to give all -that was said by decedent, but, it is certain that there was something said by him to both the witnesses from which they understood that' the statement he asked them to witness was a will. ‘ MeFarlane says that Tannke called him, stating that it was Smith’s will, and needed two witnesses; and Hixon heard the will read and knew it was a will. This testimony was given nearly two years after the acts and conversations took place, and witnesses say they do not recall all the circumstances or the words spoken. This fact is certain, decedent had evidently drawn a will. He called it a statement of the disposition of his property. He was a farmer able to be about his business, evidently in usual health. He had in mind the persons he wanted to witness his will, went in his buggy, and got Hixon as one, and passing over Derby, who was convenient, secured Tannke’s signature as the other witness. They did sign it as witnesses at decedent’s special request and in his presence, after he had exhibited it to them as a paper he wanted them to witness. That was an acknowledgment of it to the witnesses. There is no better evidence of the genuineness of a will than that it is his own handwriting. Hixon said: “He [Smith] asked me if I would sign a statement he had written out.” He was not in — 522 — extremis, where great care must he observed in the formal execution of the will and where the opportunity is great to impose upon or overreach one weak in body and mind; and the circumstances proved are convincing that the two witnesses knew this was the decedent’s will and signed it at his request in his presence as such witnesses thereto. 2. Jarman, Wills, page 105, says: “It may be here mentioned that, if a will appears on the face of it to have been executed and attested in accordance with the requirements of the act, the maxim, 1 Omnia praesumuntur rite esse acta,’ applies, unless it is clearly proved by the attesting witnesses that the will was not in fact duly executed. But, if the evidence is clear, the probate will be refused. Even where the document is informal (as where there is no attestation clause or the clause is incomplete), it may be assumed to have been duly executed (especially if it is a holograph will), although no evidence of its due execution is forthcoming. ’ ’ This principle announced by Jarman is followed by this court in Mendenhall’s Will, 43 Or. 542 (72 Pac. 318, 73 Pac. 1033), as follows: “Where the memory of witnesses is at fault in establishing a real or necessary incident attending the formal execution of the will, the attestation clause comes to the support of its validity, and the law will presume a due execution from the recitations of the requisite facts therein, or even without it, upon the hypothesis that the requirements of law have been duly observéd.” And in a holograph will this presumption is particularly applicable when executed in the manner here shown and regular on its face: See, also, Schouler, Wills (2 ed.), §§ 9, 255. 3. Furthermore contestants on this appeal contend that there is no evidence of the mental capacity of the decedent nor that he signed the will, but by the petition they admit these facts. In Mendenhall’s Will, — 523 — 43 Or., at page 547 (73 Pac. 1034), this court, quoting from the case of Hubbard v. Hubbard, 7 Or. 44, says: “It is claimed by counsel for appellants that where a will has been probated ‘in common form,’ or by proceedings wholly ex parte, as in this case, and the validity of the will is attacked by a direct proceeding, it is incumbent upon the person seeking to maintain the validity of the will to re-probate the same de novo, by original proof, in the same manner as if no probate thereof had been had. This proposition, we think, is correct, if the allegations are sufficiently broad to question the validity of the will and the competency of the proof as to its execution. In every such proceeding the onus probandi lies upon the party propounding the will, and he must prove every fact, which is not waived or admitted by the pleadings, necessary to authorize its probate in the county court. Whatever may be the form of the issue as to every essential and controverted fact, he holds the affirmative.” And the court proceeds: “This language implies that the allegations of the petition for contest must be sufficiently broad and specific to call in question the validity of the will and the competency and sufficiency of the proof as to its execution. The petition may waive or admit the necessary facts and formalities attending the probate, and good practice would suggest that it ought to point out with common perspicuity the specific features upon which reliance is placed for defeating the probate. As to all matters waived or admitted by the pleadings, it would seem that no additional proofs are necessary; but, as to those brought in question by. the petition, the proponent has the burden of the proof and must establish them in the first instance.” Construing the petition by this definition of the issues, paragraph 5 thereof specifically points to the matters contested, namely: “That the said writing is — 524 — not now nor never was the last will or testament of the said Francis Marion Smith, deceased, * * nor did either of said alleged witnesses, to wit, L. B. Hixon and C. W. Yannke, sign the alleged instrument in the presence of the said alleged testator, Francis Marion Smith, or in the presence of each other, or at his request, nor did he sign the alleged writing in the presence of said alleged witnesses, nor did they sign it at his request, nor was there any sufficient or com.petent or other proof thereof before the said court at the time of said alleged probate of said pretended will.” Subdivision 8 thereof, at least by recital, admits the execution and signing of the will: “That at the time of the execution of said pretended will by the said Francis Marion Smith he was of the age of 75 years or thereabouts; that he was an unmarried man, always having lived a bachelor and susceptible to the influence of his sister, Sarah A. Durbin; that the said Sarah A. Durbin by means of persuasions and wrongful and undue influence and by means of constraint which the said Francis Marion Smith was unable to resist induced the said Francis Marion Smith to make the said writing, purporting to be his will. * * ” Thus the issue as to the testamentary capacity of the decedent and of his writing and signing the instrument is waived by the petitioners, having tendered specific issues in relation thereto. 4. The circumstance of the execution of the will as above recited prima facie discloses a want of undue influence, and the burden to establish undue influence is upon the contestants. Schouler, Wills (2 ed.), Section 239, says: “The burden of proving fraud or force in the procurement of a will, unlike the simple issue of testamentary capacity, lies upon those who contest the instrument, and anything which imputes heinous misconduct of the party concerned and interested in its execution ought to be fairly established by a pre — 525 — ponderance of the proof. As to nndne influence, in the .usual and less offensive sense, the burden of proving affirmatively that it operated upon the will in question lies still on the party who alleges it, either by direct evidence or proof of circumstances”: See, also, Schouler, Wills and Administration, §§ 170, 239. And no evidence was offered upon, this question. Therefore, we conclude that the will was duly executed, properly witnessed, and was entitled to probate; and the decree of the Circuit Court is affirmed. Affirmed. Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Bean concur. Mr. Chief Justice McBride and Mr. Justice Ramsey not sitting.