In Re Estate of Riggs , 120 Or. 38 ( 1926 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The appellants now move the court for an order abating all proceedings ab initio and that the Circuit Court of Multnomah County be directed to dismiss the proceeding in relation to the contest of the will, the theory being that the right to contest the will is personal and dies with the person who has such right; that there is no such property right in the contestant as can be bequeathed or pass to her heirs, and that no person can be said to be interested, within the meaning of the statute so as to permit a contest, who had not an interest existing at the time of the original probate of the estate. In support of this position appellants cite Storrs v.St. Luke's Hospital, 180 Ill. 368 (54 N.E. 185, 72 Am. St. Rep. 211), and several other Illinois cases following the principal case. Also, Diffenderffer v. Griffith, 57 Md. 81, and Ligon v. Hawkes, 110 Tenn. 514 (75 S.W. 1072). None of these cases is exactly in point, as to the facts, with the present case although they bear some general resemblance.

In the instant case the contestant, Mrs. Riggs, had a decree in her favor, which conferred upon her the title to a large amount of property. The appeal taken by the proponents did not stay the effect of this decree or suspend its operation in any way. Prima facie, she had a valuable property right, which she could enforce by an application to the court at any time, and it was as much her property and the property of her estate as any other judgment could have been. There is no reason for holding that this will and contest was merely a matter in personam between Mrs. Riggs and the executors or the heirs of her husband. It was more than that; it had in effect passed the title to all the property of the deceased Riggs to the widow, and to that extent, it was an asset of her estate, which her heirs had a right to litigate. The principal case, Storrs v. St. Luke'sHospital, supra, cited by appellants, has been severely criticised by several courts and is not accepted in its entirety by any court: Ingersoll v. Gourley, 78 Wash. 406 (139 P. 207, Ann. Cas. 1915D, 570), and cases there cited. It is not only opposed by the weight of authority, but is palpably unjust. Take the facts of this case as an example, — here, the court has found that this will is void on account of the wrongful and fraudulent acts of the proponents and the contestant is given a decree carrying with it title to the property mentioned in that will and taking it away from the executors and legatees and vesting it in the widow of the deceased Riggs; and we are asked now by this motion to vacate that order without a hearing and thereby vest in the executors and legatees the title to the property, which the court below has held that they have attempted to obtain by fraud. To do this would be to strain the construction of the law in favor of what the lower court has found was a fraudulent attempt by proponents to obtain what they had no legal right to.

There has been no substitution in this case and no attempt by either party to have substitution made. It is not too late to have such substitution made in this court if either party desires it.

This is an interesting matter and really merits a more extended discussion than we have given it, but the business of the court is much congested, and we do not feel that it is necessary to pursue the subject further.

The motion to abate ab initio is overruled.

MOTION OVERRULED.

ON THE MERITS. This is an appeal from the Circuit Court for Multnomah County, Honorable GEORGE TAZWELL, Judge, sitting as a court of probate. The appellants are the devisees and executors named in the will of Pierce Riggs. The appeal is from the decree of the Circuit Court entered January 2, 1924, setting aside the will and appointing the testator's widow, Ettie Mae Riggs, the respondent, as administratrix. The entire estate was appraised at $121,235.81, of which the real property was $39,250.

Subject to the widow's dower, and such exempt property as may be set aside to her, and additional allowance made by the probate court, the entire estate is given by the will to the three executors for the purpose of reducing it to a form convenient for distribution and distributing it in specified shares among the testator's brothers, sisters, nephews and nieces, eleven in number. The executors are authorized to agree with Mrs. Riggs to a voluntary partition, or assignment of dower, or to a substitution for dower.

This will of Pierce Riggs was proved in common form November 15, 1922, by the testimony of J. Purvine, B. Lee Paget and John W. Reynolds, the subscribing witnesses. Seth Riggs, Webb C. Lewis and Cecil L. Riggs were appointed as executors in accordance with the will. The present contest proceeding was begun by Ettie Mae Riggs, the widow of decedent, by the filing of a contest petition and issuance of citation to the three executors named. The executors answered and contestant replied. The grounds of contest are two, first, that testator was not mentally competent to make his will, and second, that he was unduly influenced by Seth Riggs, testator's brother, and by other persons unknown.

The testator was born in August, 1852, and at his death November 8, 1922, was seventy years of age. He was a member of a highly respected pioneer family of Polk County, Oregon, of exemplary moral habits, of strong will, of keen business sense and economical to the point of parsimony. He was a bachelor until April, 1915, when, at the age of about sixty-three years, he married the contestant, who was then about thirty-six years of age. He had by his thrift and frugality accumulated a fortune. The contestant was without means and was working as a dressmaker for some time prior to her marriage.

The testator had spent much of his life in association with his brothers and sisters at the old family farm home in Polk County, Oregon, and for many years had been one of the same household with his brother Seth and his sister Emma, both of whom have remained unmarried. For the last four years preceding his marriage, testator had boarded and lodged with Jordan Purvine and wife of Portland, Oregon. He often visited at the home of Seth and Emma Riggs, who for many years have resided together at Portland.

The will in contest was executed May 17, 1919, about four years after testator's marriage and about three and one-half years prior to his death, which occurred November 8, 1922; decedent died of an intestinal ailment, technically called "diverticulosis," which had probably for some time contributed to the ill health he experienced the last years of his life; but that diagnosis was not made until a short time before his death. In the autumn of 1916, testator's health was greatly impaired and for several months he was under the care of a physician. He made a trip to California accompanied by his wife and a nurse, Mrs. Parry; leaving Portland February 8, 1917, and returning April 20, 1917, somewhat improved. From that time until his death he resided at 360 Ivy Street with his wife under her almost constant care.

REVERSED. REHEARING DENIED.