In Re Demaris' Estate

This is an appeal from an order of the circuit court which, after dismissing a contest of an instrument testamentary in form which was presented to the county court for probate as the last will and testament of George Demaris, deceased, held that the said instrument was in truth the last will and testament of said deceased and was entitled to probate as such.

George Demaris, a bachelor, 39 years of age, died in Milton, Umatilla county, April 11, 1939, leaving an estate which was appraised as worth $7,347.57. The contested instrument made the deceased’s sister, Ida Fuller, sole beneficiary. She is the proponent. The original contestant was Amos Demaris, father of the deceased. He died after the proceeding had begun and was succeeded as contestant by Arch Demaris, his son and executor of his estate. The petition made two charges against the script: (a) improper execution; and (b) undue influence. The latter charge has been *39 virtually abandoned. The findings of fact of the circuit court state:

“At tbe time of the execution of said will George Demaris was not acting under duress, fraud or undue influence.”

We have carefully read the transcript of evidence and are fully satisfied that there was no room for any other finding. The evidence shows that when he signed this instrument the deceased was free from all improper influences and acted purely upon his own volition. His mind was clear.

The portion of the petition which recites the charge of improper execution says:

“Said instrument of writing was prepared by Harold B. Gillis, in the absence of George Demaris and it was never read by nor read to him and he did not know the contents thereof at the time he subscribed his name thereto; that after the said George Demaris subscribed his name thereto, the said instrument of writing was taken from the room occupied by the said George Demaris into another room more than twenty-five feet from the said George Demaris, entirely out of his sight and wholly out of his presence, where it was then signed by the said Harold B. Gillis and Jean I. Gillis, his wife, as pretended witnesses, and the said George Demaris did not see either of said witnesses subscribe his or her name to the said instrument of writing and he did not know and never did kow who were witnesses to the said instrument of writing or whether the same was witnessed by anyone or at all.”

It will be observed that the signatures of the testator and of the two attesting witnesses are conceded. The only issues, therefore, are: did the testator know (1) the contents of the instrument, and (2) the identity of the attesters; and did the attesting witnesses sign *40 “in the presence of the testator” within the contemplation of § 18-201, O. C. L. A., which says:

“Every will shall be in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will, in the presence of the testator. ’ ’

George Demaris’ mother had predeceased him. His father was still living at the time of George’s death, but died shortly thereafter. He left no estate, unless George’s descended to him. Since George left no issue, and since his mother had predeceased him, his estate descended to his father, if the will under attack is invalid. The father’s will bequeathed the sum of one dollar to Ida Puller, sole beneficiary of George’s will, and of the remainder of the estate left to Ann Kelly and Arch Demaris one-fourth each. All three of those persons were children of Amos Demaris; Ann and Ida were sisters of George, and Arch was his brother. We shall refer to these three frequently hereafter. As has already been said, Ida Puller is the proponent and Arch Demaris is the contestant. Ann Kelly was one of the latter’s principal witnesses. George was the youngest of the nine children of Amos Demaris and his wife. Some time before their deaths the parents had separated. This and other circumstances caused friction to develop, not only between some of the children and the father but also between some of the children themselves. George was one of the children who sympathized with his mother and evidenced displeasure at his father’s course. He and Ida were near in age and shared the same views. Ida did not marry until a year or so before George’s death.

*41 We shall now give a resume of the evidence which bears upon the above charges. George Demaris lived upon a farm situated near Milton. April 2,1939, he was taken ill and summoned his sister, Mrs. Ann Kelly, who lived nearby. Shortly she took him to the office of Dr. Harold B. Gillis in Milton. Dr. Gillis is the person named in the contestant’s petition. At the time of George’s arrival Dr. Gillis was absent, but his wife, a registered nurse, who was in charge of the office, communicated with her husband by telephone. Pursuant to instructions which she received over the telephone, Mrs. Gillis administered to George a quarter grain of morphine, the purpose being to relieve the intense pain from which he was suffering. George weighed 190 pounds. The uncontradieted evidence indicates that a man of that weight, experiencing pain as intense as that which George'was suffering, could sustain no lessening of mental powers from the administration of a quarter grain of morphine.

The witnesses referred to Dr. Gillis’ office as a clinic. It was a one-story building, 30 by 30 feet in ground dimensions, divided into eight rooms. We are concerned with only the three front rooms. These were a waiting room with a consulation room to its left and a treatment room to its right. The following plat, drawn to scale, will assist in an understanding. The two doors connecting these three rooms were 29 inches wide. The plat shows a cot and a bed in the treatment room and a desk in the consultation room.

When George entered the clinic he was taken at once into the treatment room and was placed upon the cot. In order to make him more comfortable a bed was then brought into the room and he was placed upon it with his head toward the west. -The cot was

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*43 22 inches wide and the bed 36 inches wide. The two were placed within a few inches of each other. When the door was open it touched the foot of the cot. Next to the north wall of the treatment room was some electrical equipment. Between the equipment and the bed there remained a space about a foot and a half wide. It was in this space, or narrow corridor, that Mrs. Kelly and Dr. Gillis stood when the incidents which we shall shortly describe took place. After the bed had been moved into the room George was placed upon it. We have marked on our plat indications of the cot, bed and desk in substantially the same places where Mrs. Gillis sketched off-hand similar representations. No one questioned the substantial accuracy of her markings, nor of the plat from which we reproduced ours.

George arrived at Dr. Gillis’ clinic about 7:30 or 8:00 p. m. Thirty to forty minutes later Dr. Gillis returned from Pendleton and at once examined George whom he found to be suffering from a complete obstruction of the small intestine. His condition caused George to experience intense pain over the entire abdomen and at intervals of about five minutes to retch and vomit. By this time there had arrived at the clinic, besides Mrs. Ann Kelly, Harold Biggs, who was in her employ as a farm laborer, Ida Puller and her husband, Arch Demaris and his wife, and Goldie Shelton, another sister of George.

We shall now describe the preparation and execution of the will by employing Dr. Gillis’ narrative of it. An understanding of the issues will be facilitated, we believe, by stating at this point that Dr. Gillis’ narration of the facts is challenged by the contestant *44 in only three details. He-does not contend — at least not expressly — that Dr. Gillis sought to do other than tell the truth. The three details are: (1) Dr. Gillis swore-that his wife was present when-George signed the will; the contestant claims that- she was not present, but that Mrs. Kelly was in the room; (2) Dr. Gillis said that while preparing the will hé asked Mrs. Fuller for the spelling of the name Demaris; the contestant claims that it was Mrs. Arch Demaris, and not Mrs. Fuller, to whom this inquiry was directed; (3) the contestant claims that Dr. Gillis held-the will in his hand, visible to all, when he .entered George’s room for. the purpose of having him sign it, and that the physician swore that the will reposed in his pocket. Our examination of the record discloses that Dr. Gillis was silent upon the subject. Hence, Dr. Gillis’ version of the facts differs in only two details from that given by the contestant’s witnesses. Our purpose in having stated these circumstances before beginning the narrative is to indicate that we are relating testimony which is free from dispute except in two particulars.

After Dr. Gillis had made his examination he arrived at the conclusion that an operation was necessary and so. told the members of the family that had gathered. He suggested that it might be advisable to secure a consultant. It was agreed that Dr. J. W. Ingram of Walla Walla should be called. He did not arrive, however, until after the incidents with which we are concerned had taken place, and hence we shall have no occasion to 'mention him again. Before Dr. Ingram arrived, which was about 10:00 p. m., Dr. Gillis was told that George wanted to speak to him. Dr. Gillis had been in Milton for only two years and had not known George prior to this evening. Likewise, *45 Mrs. Fuller was a stranger to him, but he had attended other members of the Demaris family. After George had made known his wish to speak to Dr. Gillis alone, the physician asked those in the room to leave. Apparently those who were in the room were Mrs. Fuller and Mrs. Kelly. After they had stepped into the waiting room Dr. Gillis closed the door. We now quote from his testimony: “After everybody had left there he said, ‘Doc, I am in an awful serious condition and I don’t know whether I will live. If I don’t live, I want my sister Ide to have everything I have got.’ ” “Ide” was George’s nickname for his sister Ida Fuller. Continuing, the physician said, “I believe the first thing that I did, I asked if he had a previous will and he said ‘No.’ Then, I asked if he wanted to leave all of his money and real estate and personal properties, and he said ‘Yes. ’ And so, I said, ‘I will draw it up as to that effect.’ And I went into my of fice, and got out my stationery and started to typewrite that down but I didn’t know the complete name of the beneficiary or her address. (Q.) That was Mrs. Fuller? (A.) Mrs. Fuller. And so I called her into my private office to ask her name and address and I don’t believe at that time I told her it was for a will, and I merely asked her her name and address in Walla Walla.” When he said that he repaired to his private office for the purpose of typewriting the will he meant the room indicated upon our plat as the consultation room. Our plat shows a desk in that room. Upon the desk stood a typewriter and it was upon that instrument that he wrote the will. Before Dr. Gillis left the room George had asked him not to mention to those in the waiting room the request which he had just made for the *46 preparation of the will. A copy of the script which the witness prepared follows:

“Milton, Oregon

April 2,1939

Being sound of mind I, George Demaris, do will and bequeath all real and personal properties as well as monies to my sister, Ida Fuller, 846 N. 9th St., Walla Walla, Washington.

Signed

Witnessed by ”

Dr. Gillis said that this was the first will he had ever prepared, and added, “the last.”

Only two or three minutes were consumed in typing the will and thereupon Dr. Gillis reentered George’s room, bringing with him not only the writing but also a pen and a magazine. He swore that when he reentered the room Mrs. Gillis was there attending to George and that they were the only two persons in the room. He could not recall whether he closed the door after reentering. We now quote from his testimony: “I took a pen with me and a magazine for him to write on and propped him up in bed. He was lying on his left side. I put him up so he could write and I said, * George, here’s the will,’ and it ‘bequeathed all your monies and real and personal properties to your sister Ida Fuller’ and to sign here.” He said that George, who was in severe pain, did not read the will before signing and that he (Dr. Gillis) did not read it to him. Further testifying, he swore that while George was signing his name to the instrument he had another attack of cystic vomiting and thereupon Mrs. Gillis departed for the purpose of obtaining some towels. He explained that George refused to use an emises basin, hence, the need for the towels. As Mrs. Gillis hurried out of the room “someone came into the room,” so *47 the physician swore. After George had completed his signature Dr. Gillis left the room and took the script with him- Twenty to thirty minutes later he and his wife entered the consultation room and there, as attesting witnesses, signed the will. The witness said that George had not expressly asked him to sign. He could not recall whether the doors of the waiting room were closed at that time. When he signed he was seated in a chair on the north side of the desk, and when his wife signed she was standing on the south side of the desk. The desk was 34 by 60 inches in size. The witness swore that it was impossible for George to have seen him (the witness) when he signed the will, but that it was physically possible for George to have seen Mrs. Gillis sign. After the two had signed as attesting witnesses, Dr. Gillis placed the will in a compartment of his desk. Before doing so he did not show it to George; in fact, after George had signed the will he never saw it again.

Dr. Gillis testified that following the operation George’s condition showed marked improvement until 3:30 in the morning of the day of his death, which was nine days after the operation. The cause of the death, according to the physician, was cerebral embolism. In the period in which George seemed on the way to recovery, “I kidded him,” so Dr. Gillis testified, “about not needing his will.” George’s only response, according to the witness, was “he smiled and felt pretty good.” Upon cross-examination the witness slightly elaborated upon the above narrative. Among other matters, he said, “I remember I told him that here was his will, and that he had bequeathed — willed all of his monies and properties to his sister Ida.” Some time after George had signed the operation was performed.

*48 . Mrs: Gillis testified that she knew nothing about the preparation of the will. Her first information about the writing came when her husband entered the room where she was attending George and “said, ‘Here, George .this is what I. have written’ or something to that effect, and read — he didn’t read it, he just told him the-contents of what he had written * * * I believe.it was something like this, ‘I bequeath all. of my real and personal property to Ida Fuller. ’ Something like that. That was the contents anyway. ” Upon cross-examination, her words were: “He came in and shut the door and said, ‘Here it is, George.’ And he told him the contents — I don’t remember the words. He told him the contents and he held it in his hand and he picked up the magazine and put the will on the magazine and put the will so he could see it.” She testified that she remained in the room until .George had written “George D” whereupon George began to vomit and she rushed out of the room for a supply of towels. About twenty to thirty minutes later she met her husband in the consulation room and was then asked by him to sign as an attesting witness. George had not asked her to do so. She said that when her. husband made this request she at first demurred, explaining that she did not care to have anything to do with wills, but yielded and signed when he said, “Tourare. the only one here that is not a relative.” She too swore that her husband was seated in his office chair and that she signed while standing on the south side of the desk: Both doors of the waiting room stood open. She said that George, while lying in the bed, could have seen her in- the act of signing the will had he looked,- and added that while she was signing she could plainly see George. She -too said that it was impossible for George to have seen Dr. Gillis sign. The will was not *49 signed sooner, she explained, because in the interval she was engaged in performing various duties for other persons in the clinic. At the time of the signing there were in the reception room, according to her testimony, Mr. and Mrs. Arch Demaris and Mr. and Mrs. Fuller. Mrs. Kelly at that moment was attending George. Upon cross-examination, she was asked to estimate how far George was from her when she signed. She answered that the distance was 15 or 16 feet. She was unable to say whether George saw her sign.

Like her husband, Mrs. Gillis testified that a day or two after the operation George showed great improvement. In fact, he shortly talked about returning home and made arrangemen