Postelle v. Shuholm

235 P.2d 869, 192 Or. 441, 1951 Ore. LEXIS 267

• Court: Oregon Supreme Court
• Decided: September 26, 1951
• Status: Published

Opinions

HAY, J.

This is an appeal from a decree sustaining the will of Mrs. Bandi Andersen, deceased, against a contest by Helen M. Postelle and Balph GK Bunning, who are respectively niece and nephew of the testatrix, and claim to be her sole heirs at law. The grounds of contest are lack of testamentary capacity and undue influence.

Mrs. Andersen was about 85 years of age at the time of her death. She was of Norwegian birth, but had resided in Portland, Oregon, for many years. Her husband predeceased her, and it does not appear that she had ever had any children.

At some time around midday on March 28, 1949, Mrs. Andersen, who had been in good health theretofore, suffered an attack of acute congestive heart failure. She was removed to Providence Hospital, where she remained until her death five days later. On March 29, 1949, she executed the will which is under attack in these proceedings.

The will made the following devises and bequests: A 40-acre tract of farm land in Clackamas County, Oregon, to Carlmer and Minnie Amundson, husband and wife; a residence property in Portland to Cecil Key and Mary Key, husband and wife; another residence property in Portland to' Edna Lindberg, described in the will as testatrix’s niece, but who is in fact her deceased husband’s niece; testatrix’s personal effects, household furnishings, and personal property situated in her home in Portland to Minnie Amundson, also described as testatrix’s niece but actually her husband’s; $1,000 tó Anna Detwiler, of Seattle, Washington ; $300 to Axel Monnes, of Portland; $100 to Evelyn I. Shuholm, of Portland; $300 to testatrix’s nephew, Ralph Running, a contestant herein; $300 to testatrix’s niece, Helen Postelle, a contestant herein; $500 to Ole Einangshaug, of Sona, Trondheim, Norway. Minnie Amundson was made residuary legatee, and Evelyn I. Shuholm was named as executrix, to act without bond.

It is alleged in the petition, in effect, that, at the time of the execution of the will, testatrix, by reason of illness affecting her body and mind, was lacking in testamentary capacity, and that the attacked instrument was not in fact her will but that she was caused to sign it through undue influence, dominion and control exercised over her by Minnie Amundson, a relative of hers by marriage.

Evelyn I. Shuholm, having been duly appointed executrix of the will, answered the petition by general denial, and affirmatively propounded the attacked will for probate in solemn form. Issue was joined by contestants ’ reply. A hearing was held before the probate court, and, on November 22,1949, a decree was entered admitting the will to probate in solemn form and dismissing the contest. The contestants have appealed.

The elements of testamentary competency have been stated by us upon frequent occasions. We need not repeat them here. See § 18-101, O.C.L.A., as amended by ch. 136, Oregon Laws 1941; In re Walther’s Estate, 177 Or. 382, 386, 163 P. 2d 285, and cases cited. The burden of proof thereof rests upon the proponent. Holman’s Will, 42 Or. 345, 357, 70 P. 908; Darby v. Hindman, 79 Or. 223, 224, 153 P. 56; In re Sturtevant’s Estate, 92 Or. 269, 276, 178 P. 192; Brumbaugh v. Barber, 135 Or. 392, 399, 296 P. 42.

The evidence shows that testatrix suffered a heart attack on March 28, 1949. Dr. Joseph Amato was called, and under his orders testatrix was removed to Providence Hospital, where she received the customary treatment for a patient in a condition of acute cardiac failure. She was in much distress. Her breathing was labored, and considerable torpidity of her circulatory system was indicated by marked cyanosis. By the following morning, her condition, as testified to by Dr. Amato and one of the nurses, appeared to have improved. At about five o’clock in the afternoon, Dr. Amato conducted another examination. He thought that, in comparison with her condition in the morning, she had begun “to slip again.” He did not, however, visit her any further that day.

Evelyn Shuholm is a young woman of Scandinavian extraction. She is a law office stenographer of several years’ experience. She appears to have been an intimate friend of the testatrix. At some time previous to her heart attack, Mrs. Andersen had made arrangements through Miss Shuholm to have Leo Levenson, a Portland attorney, call upon her for the purpose of advising her with reference to making a will, but, other matters intervening at that time, she canceled the arrangements. On March 29, 1949, Miss Shuholm asked Mr. Levenson to go with her that evening to the hospital so that Mrs. Andersen might confer with Trim in reference to drawing her will. They accordingly went to the hospital at about seven o’clock p.m. Mrs. Andersen was in a ward with several other patients. Mrs. Amundson was visiting her when they arrived. Mr. Levenson had not met either Mrs. Andersen or Mrs. Amundson previously, and Miss Shuholm introduced bim to them. Mrs. Andersen took hold of Mr. Levenson’s hand, held it with a very firm grasp for half a minute or so, and called him by his first name. She said that she was glad that he had come; that she had asked for him to come. There followed a general conversation lasting about three-quarters of an hour. Mr. Levenson testified that he deliberately caused Mrs. Andersen to be engaged in such general conversation, with the idea that she might demonstrate by intelligent participation therein that she had testamentary-capacity. The conversation was mostly between Mrs. Andersen, Miss Shnholm and Mrs. Amnndson. Mr. Levenson for the most part listened, but did join in the conversation to some extent. During the general conversation, nothing was said about a will or about any business matter. Finally Mr. Levenson, having satisfied himself that Mrs. Andersen was “fully competent,” said to her: “Now, Mrs. Andersen, if you want me to draft your will, you will have to tell me just what you have in mind.” She thereupon began talking about her property. On Mr. Levenson’s suggestion, Miss Shnholm took notes, partly in shorthand and partly in longhand, of Mrs. Andersen’s instructions. He had those notes in court when he testified as a witness herein. Among other matters, Mrs. Andersen wished to devise a house and lot, situated immediately to the rear of her own home, to Cecile Key, a little girl about six years old, of whom she was very fond. Mr. Levenson suggested that if the parents were good people they might be depended upon to care for the child, and that it might be better to leave the property to them, thereby avoiding the necessity for involving it in a guardianship proceeding. This suggestion met with Mrs. Andersen’s approval. She then talked about Ole Einangshaug, an old friend of hers in Norway, who had a family of children to support and was in necessitous circumstances, and for whom she desired to make some provision. Thereafter, she discussed the various bequests and devises which she had determined to make. She had a shopping bag under the table. She asked Mrs. Amundson to get the bag for her, handed it to Miss Shnholm, and asked her to open it. In the bag were many papers and deeds, and a considerable amount of old paper money folded and tied with string. Mr. Levenson said that he would have to go to his office and prepare the will. Mrs. Andersen told him she wanted him first to go to her house and get some other papers and the addresses of certain of the beneficiaries, including Helen Postelle, her niece. She told him that she would arrange with the nurse to leave the door of the ward open so that he could have access to the ward when he returned with the will. Thereupon, Mr. Levenson, accompanied by Mrs. Amundson and Miss Shuholm, took the shopping bag and went to Mrs. Andersen’s home on Mississippi avenue, where he procured the necessary papers and data. From there they went to Mr. Levenson’s office, where Mr. Levenson, in the presence of the others, counted the money which was in the shopping bag, and found that it amounted to $3,890. There were also in the bag savings account books in various banks. Mr. Levenson then dictated the will to Miss Shuholm in accordance with the notes which she had made at the hospital, and Miss Shuholm typed it. Mrs. Amundson during that time occupied another room of the office. The will was completed at about a quarter past 10 o’clock, and Mr. Levenson and the two women thereupon returned to the hospital. The light was burning in Mrs. Andersen’s ward, the door was open, and Mrs. Andersen was awake. They went in, and Mr. Levenson told Mrs. Andersen that he had the papers with him but that they would have to get witnesses. He said that he himself could be one, and Mrs. Andersen wanted to know why Miss Shuholm could not be the other, it was explained to her that Miss Shuholm was a beneficiary and therefore could not act as a witness. Mr. Levenson then went to the nurses’ room on that floor, where there were two nurses in attendance. He asked if either of them would care to be a witness to the will, but they said that it was against the rules of the hospital for a nurse to do so. He then met the Sister Superior, who upbraided him for coming there at that late hour, and said that no visiting was permitted after eight o’clock. Mr. Levenson explained that he was not a visitor, but was there on business. Thereafter, he went down to the main floor, where he talked with Mrs. Nellie Edmonds, a telephone operator employed by the hospital, who was just about to go on duty. Mrs. Edmonds agreed to act as a witness, and accompanied Mr. Levenson to Mrs. Andersen’s room. Miss Shuholm then, at Mr. Levenson’s request, read the will to Mrs. Andersen, first in English and then in Norwegian, paragraph by paragraph. After each paragraph had been read in English, she asked Mrs. Andersen in Norwegian if she understood it, and Mrs. Andersen each time responded: “Ja, that’s what I want; that’s what I want.” Mr. Levenson then said to Mrs. Andersen: “Now, you will have to ask the two witnesses if you want them to witness your will. * * * Now, do you want me to be a witness to this will?” Mrs. Andersen said: “Ja.” Mrs. Andersen then attempted to sign her name upon the will, but was unable to do so for the reason that the will was lying upon the bedclothes and she needed some firmer support for it. Mrs. Edmonds volunteered to get an aluminum chart board to plaee under the will, which she did. Mrs. Andersen then signed the will, and, upon Mr. Levenson’s reiterated suggestion, asked bim and Mrs. Edmonds to be witnesses. Thereupon they affixed their signatures to the will as witnesses. Mrs. Andersen then said: “Well, I feel much better now.”

Mr. Levenson testified that Mrs. Andersen had entered intelligently into the general conversation which preceded the taking of her instructions in regard to drafting the will. Thereafter, she discussed with him the descriptions and location of her property and the nature of it. She told him about the deeds, some of which she had at the hospital and others at the house. In regard to her mental condition, he said: “Mentally she was alert; her eyes were keen; she had a good grip in her hand, a warm grip in her hand; she shook hands with me when I was there at seven o’clock; her mind functioned well; she answered questions without any hesitancy; her conversation that was going on was intelligent; her answers were intelligent; she smiled when we brought up something that was interesting to her.” She carried on an extensive conversation with Miss Shuholm in broken English and Norwegian.

Mrs. Nellie Edmonds testified that she was not acquainted with Mr. Levenson at the time when he asked her if she would act as a witness. She accompanied him to Mrs. Andersen’s room and Mr. Levenson introduced them to each other. There was a general conversation going on at the time, to which she did not pay much attention. The will was then read by Miss Shuholm section by section, first in English and then in a language which Mrs. Edmonds supposed to have been Norwegian. Mrs. Andersen asked Mrs. Edmonds if she would witness her signature. When the will was handed to Mrs. Andersen for her signature she said: “This is too soft; I’ve got to have something harder to write on.” Mrs. Edmonds thereupon procured an aluminum chart board, and Mrs. Andersen, using that to support the will, signed it in the presence of both Mr. Levenson and Mrs. Edmonds, who thereupon, in the presence of testatrix and of each other, added their signatures as witnesses. Mrs. Andersen seemed to be alert. In Mrs. Edmonds’ opinion she knew what she was doing. The things that Mrs. Andersen said to her were perfectly lucid.

On behalf of the contestants, Dr. Joseph Amato, the attending physician, Dr. Wesley Wayne Hoskins, a resident physician at Providence Hospital, and several nurses who at one time or another were in attendance upon Mrs. Andersen, testified at length and in detail regarding Mrs. Andersen’s physical and mental condition, and said that, in their opinion, she was not mentally competent to know and understand the nature and extent of her property or the persons who would be the natural objects of her bounty. Dr. Amato’s testimony was based mainly upon Mrs. Andersen’s condition at about five o’clock in the evening of March 29, 1949. Thereafter, at about eight o’clock p.m., a nurse administered to her one-sixth of a grain of morphine sulphate, to allay her restlessness, and the doctor gave it as his opinion that such a dose would have rendered it impossible for her to have had sufficient understanding to be mentally competent as of the time when the will was executed. Dr. Hoskins testified that he had talked with Mrs. Andersen on several occasions on the day she signed the will, and at no time received intelligent responses. Answering a hypothetical question, he said that, in his opinion, Mrs. Andersen, at the time when she signed the will, could not have understood the details of what she was doing and have judged with understanding and reason between one disposition (of property) and another; that her mind and memory could not have been sufficiently sound to have enabled her to know and understand the business in which she was engaged and what disposition she wanted to make of her property.

Dr. Leland Y. Belknap, an experienced physician and surgeon, testified as an expert witness. There was propounded to him a lengthy hypothetical question, involving most of the evidence which had been received respecting Mrs. Andersen’s physical and mental condition and her surroundings before, at the time of, and subsequent to the execution of the will, and calling for his opinion based thereon as to her testamentary capacity. In response thereto he testified: “I don’t think she at that time was mentally alert enough to know what was going on.” However, on cross-examination, in answer to a hypothetical question even lengthier than the one before, involving the evidence from proponent’s point of view, he stated that, assuming that everything in the question was true, he would not “say positively that that did not happen, could not have happened.” From a plethora of questions, objections, arguments, and a very brief answer, we gather that the doctor meant that, if it was true that Mrs. Andersen took the active part in the preparation and execution of the will which the testimony of proponent’s witnesses indicated that she did, she had testamentary capacity.

In a general way, the nurses corroborated the physicians’ opinions as to Mrs. Andersen’s lack of testamentary capacity. It is to be observed, however, that none of the physicians or nurses actually saw Mrs. Andersen at the times when Mr. Levenson talked with her or at the time when the will was read to her and executed by her, and that Dr. Belknap never saw her at any time.

The ultimate question to be determined, of course, is whether or not the testatrix had testamentary capacity at the time when she executed the will. Clark v. Ellis, 9 Or. 128, 147; In re Sturtevant’s Estate, supra, 92 Or. 269, 287, 178 P. 192; Talbert v. Skilbred, 125 Or. 545, 548, 267 P. 396; In re Walther’s Estate, supra, 177 Or. 382, 388, 163 P. 2d 285. The evidence of the physicians and of the nurses as to her physical and mental condition before and after the time of the execution of the will was entirely competent in this connection. In re Murray’s Estate, 173 Or. 209, 220, 144 P. 2d 1016; In re Provolt’s Estate, 175 Or. 128, 133, 151 P. 2d 736. As against such opinion evidence, however, we have the unqualified statements of unimpeached witnesses, of the existence of the facts evidencing testamentary capacity. Pickett’s Will, 49 Or. 127, 152, 89 P. 377; In re Sturtevant’s Estate, supra, 92 Or. 269, 287, 178 P. 192. The proof here was considerably more than merely formal. It showed that the will was read to the testatrix, paragraph by paragraph, both in English and in Norwegian, in the presence of the subscribing witnesses, and that she expressed her understanding and approval thereof. Such method of proof was very proper in view of the testatrix’s age and infirm condition. Pickett’s Will, supra, at p. 141.

The testimony of the subscribing witnesses, Mr. Levenson and Mrs. Edmonds, if accepted as true, clearly indicates that at the time when she gave her instructions regarding the drafting of the will, and when she executed it, Mrs. Andersen was fully aware of what she was doing, of the nature and extent of her property, and of the persons who were the natural objects of her bounty. Mr. Levenson is an attorney at law in good standing. At the time when he witnessed Mrs. Andersen’s will he had been practicing in Portland for about a quarter of a century. His character and credibility were not impeached in any respect whatever. Indeed, upon the oral argument, counsel for contestants stated specifically that they were not attacking Mr. Levenson’s credibility. The mere fact that he was the person who, as testatrix’s attorney, drafted the will, did not in any manner disqualify him from acting as a witness thereto. In re Estate of Meier, 190 Or. 140, 224 P. 2d 572, 575. Mrs. Edmonds was evidently a completely disinterested witness, who had not previously been acquainted with any of the persons involved. No reason is apparent from the evidence to indicate that Miss Shuholm, one of the chief actors in the transaction, and the person who secured the services of Mr. Levenson for Mrs. Andersen, was not completely disinterested. Her only connection with Mrs. Andersen was one of good-hearted friendship. According to Mr. Levenson’s testimony, Mrs. Amundson took very little part in the general discussion and none at all in connection with the preparation or execution of the will.

The most important witness on the part of the contestants in this connection was Mrs. Mettie Yarbrough, who occupied one of the beds in the same ward as Mrs. Andersen’s during the time when the events which we have been discussing took place. She testified that there were four beds in the ward, two on either side. Mrs. Andersen was in the bed immediately to the left of the door, and Mrs. Yarbrough’s bed was diagonally opposite. There was a distance of about 15 feet between the two beds. On the day on which the will was executed, Mrs. Amundson visited Mrs. Andersen several times, and twice reminded her that she wanted to make a will. At about three o’clock in the afternoon, Mrs. Amundson mentioned to Mrs. Andersen different things that were supposed to be put in the will, but Mrs. Yarbrough did not hear Mrs. Andersen make any response. In the evening, Mr. Levenson came with Mrs. Amundson and Miss Shuholm, and they talked over the will. Mrs. Amundson did most of the talking. They were there approximately three-quarters of an hour. Mrs. Yarbrough did not hear any audible words spoken by Mrs. Andersen. The conversation was between Mrs. Amundson, Miss Shuholm and Mr. Levenson. With reference to the disposition of the property, Mrs. Amundson made most of the remarks, saying, in effect, that she remembered that Mrs. Andersen had said she wanted such and such property left to so and so. After Mr. Levenson and the two women left, the nurse came in and made Mrs. Andersen comfortable for the night. They turned the light off, but Mrs. Andersen made some kind of grunting sound, and the nurse asked if she wanted the light on, and “they” turned it back on. Mr. Levenson and the two Avomen came back close to 11 o’clock.

“A. * * * Minnie [Mrs. Amundson] came in, and Evelyn came in first. They told the nurses they were supposed to have Mrs. Andersen awake so that she could sign her Avill, and the nurse made an awful fuss about it, because it was after hours. She was afraid of waking the other patients, who were fairly sick, but she insisted, and they got the lawyer. The laAvyer came in then, and then they had to go out to get someone to be a witness, and they were gone for a little while, and they came back in with this lady up here, Mrs. Nellie Edmonds, or something of the sort.

“Q. Then, after Nellie Edmonds, the lawyer, Minnie and Evelyn were all in the room, did you observe what went on then? A. Yes; one of them said, ‘We have a will made as you wanted it made, and do you want it read?’ and there was no answer. The will was not read.

“Q. You observed everything that went on there, and did not hear the will read? A. I did not hear anything that even sounded like a will.

“Q. What did they do as regarding getting the will signed? A. They went out to get some kind of board to put under Mrs. Andersen’s hand so that she could sign it.

‘ ‘Q. How long were they in there ? A. Approximately fifteen minutes, no longer, because the girl had to get back to the switchboard. I heard her say so.”

Continuing, Mrs. Yarbrough testified that Mrs. Andersen did not take part in any of the general conversation on the occasion of Mr. Levenson’s first visit. Mr. Levenson himself did not say much of anything. Mrs. Amundson talked about Mrs. Andersen’s eats, and this and that, her household affairs, and what she had done for the cats; that she had taken care of them so Mrs. Andersen wouldn’t worry about them. Miss Shuholm didn’t say much. Mr. Levenson didn’t ask Mrs. Andersen any questions whatever about the will. He did say he came to make the will for her. Mrs. Amundson did the talking, and she said she had the notes all made for them ‘ ‘ just as Aunt Eandi wanted them.” Mrs. Amundson had some notes in her hand, and she kept them in her hand until she handed them to the lawyer.

“A. She handed a package to the lawyer that consisted of papers and some money. Whether she had the notes with them at that time I do not know, but I believe either she took them with her to do some work on them or she handed them to him.

i i # * #

“Q. Did you see anybody making any notes there that night? A. I believe Evelyn had a pad and pencil in her hand.

“Q. What was she doing? A. She could have been writing.

ft# «5 #

“Q. Your testimony is that Randi Andersen, during that time, never said anything? A. I didn’t hear her say anything.

“Q. Would you say that she did or didn’t? A. I said I didn’t hear. I don’t know whether she did or did not. I didn’t hear it.”

We are at a loss to account for the direct and positive conflict between the testimony of Mr. Levenson and Mrs. Edmonds on the one hand and that of Mrs. Yarbrough on the other. The conflict was absolute, and the chancellor was obliged to resolve it upon consideration of all the evidence and of the appearance and demeanor of the respective witnesses. There was evidence that the curtains around Mrs. Andersen’s bed were at least partially drawn. Mrs. Yarbrough testified that she had been unable to sleep on the occasion, and that she was wide awake during the two visits of Mr. Levenson to the hospital, but perhaps she was not so wakeful as she thinks she was. At all events, we find ourselves unable to discount the effect of the positive testimony of Mr. Levenson and Mrs. Edmonds, the subscribing witnesses, and we agree with the chancellor in giving greater weight to their testimony than to that of Mrs. Yarbrough.

The testimony of the subscribing witnesses in support of the mental competency of the testatrix is entitled to great weight, and, according to some of the authorities, entitled to greater weight than that of non-subscribing witnesses. It is aided by the presumption of competency which follows proof of due execution of the will. Annotation, 123 A.L.R. 89; Clark v. Ellis, supra, 9 Or. 128, 147; In re Will of Robert Carr, 121 Or. 574, 580, 256 P. 390; Morley v. Silverton Hospital, 138 Or. 75, 95, 5 P. 2d 92; McGreal v. Culhane, 172 Or. 337, 341, 141 P. 2d 828; In re Walther’s Estate, supra, 177 Or. 382, 401, 163 P. 2d 285.

As to the testimony of the doctors and the nurses, our acceptance of the testimony of the subscribing witnesses obliges us to conclude that, while Mrs. Andersen was a very sick woman, she had, during the evening, rallied enough from her condition earlier in the day so that she had sufficient understanding to enable her to comprehend the business about which she was engaged. She had borne in mind the fact that she had a brother, John Ronning, from whom she had not heard for more than 30 years. She named him in her will, but made no provision for him. She bequeathed to each of the contestants the sum of $300, describing them as her nephew and niece respectively. There is no evidence that contestants had paid any particular attention to Mrs. Andersen in her lifetime, or that they had any reason to consider themselves the natural objects of her bounty other than the mere fact of collateral relationship. On the other hand, as Mr. Levenson testified, Mrs. Andersen told him that the Andersen family had been kinder to her than her own relatives.

In this connection we reiterate what we have frequently said, that in cases of this character the findings of the trial judge who had the advantage of seeing and hearing the witnesses are strongly persuasive. Morley v. Silverton Hospital, supra, 138 Or. 75, 95, 5 P. 2d 92; In re Murray’s Estate, supra, 173 Or. 209, 227, 144 P. 2d 1016; In re Provolt’s Estate, supra, 175 Or. 128, 135, 151 P. 2d 736; In re Southman’s Estate, 178 Or. 462, 483, 168 P. 2d 572.

This court, in Chrisman v. Chrisman, 16 Or. 127, 136, 18 P. 6, said:

“ ‘The phrase “sound mind,” ’ said Sir James Hanner, ‘covers the whole subject, but emphasis is laid upon two particular functions of mind which must be sound in order to create capacity for the making of a will, for there must be memory to recall the several persons who may be supposed to be in such a position as to become the fitting objects of the testator’s bounty; above all, there must be understanding to comprehend their relations to himself, and their claims upon him.’ (Broughton v. Knight, Law R. 3 Pro. & D. 64; 6 Moak E.R. 350.) This probably is about as correct a definition of the law as any given, but it is merely a reiteration in a different phrase of what has been repeatedly expressed by other judges. * * *”

Tested by the foregoing, we are of the opinion that the evidence established that Mrs. Andersen, when she executed the will in controversy, had testamentary capacity, notwithstanding her advanced years and the illness from which she was suffering. In re Bond’s Estate, 172 Or. 509, 520, 143 P. 2d 244; In re Davis’ Will, 172 Or. 354, 370, 142 P. 2d 143; Chrisman v. Chrisman, supra, at p. 138; Ames’ Will, 40 Or. 495, 504, 67 P. 737; In re Walther’s Estate, supra, 177 Or. 382, 388, 163 P. 2d 285; In re Sturtevant’s Estate, supra, 92 Or. 269, 300, 178 P. 192; McGreal v. Culhane, 172 Or. 337, 343, 141 P. 2d 828.

We do not find that there was proof of the existence of a fiduciary relationship between the testatrix and Mrs. Amundson. No doubt they were intimate friends, and probably their relationship was sufficiently close to have been regarded as confidential. In re Knutson’s Estate, 149 Or. 467, 488, 41 P. 2d 793. However, there is no proof whatever, in our estimation, that Mrs. Amundson took undue advantage of the relationship, or exercised any influence whatever in the disposition which testatrix’s will made of her property. It is true that Mrs. Amundson was assiduous in her attentions to testatrix in her illness, but the mere kindly attentions of a close friend are not undue influence.

The burden of proving undue influence is usually upon the party who asserts it. Wayne v. Huber, 134 Or. 464, 470, 291 P. 356, 294 P. 590, 79 A.L.R. 1427; In re Southman’s Estate, supra, 178 Or. 462, 482, 168 P. 2d 572. Where, however, a fiduciary or confidential relationship exists between testator and beneficiary, and there is proof that the beneficiary was actively concerned with the preparation of the will, then the beneficiary is required to produce evidence sufficient to establish that no undue influence was in fact exerted. Allen v. Breding, 181 Or. 332, 341, 181 P. 2d 783; In re Knutson’s Will, supra, 149 Or. 467, 488, 41 P. 2d 793. There was testimony by Mrs. Yarbrough, as has been stated, to the effect that Mrs. Amundson made certain suggestions to testatrix with respect to matters which should be in the will, but we think that this testimony is entitled to little weight. There was nothing in the evidence, in our opinion, to indicate that the testatrix was in any respect deprived of the free exercise of her own judgment in the premises. Evans v. Anderson, 186 Or. 443, 470, 207 P. 2d 165; In re Will of Robert Carr, supra, 121 Or. 574, 581, 256 P. 390; Allen v. Breding, supra, at p. 343.

Moreover, as we have said, there was no showing, apart from their relationship, that the contestants were the natural objects of the testatrix’s bounty. We think, therefore, that the fact that contestants received only minor legacies did not tend to show that the will was an unnatural one. Talbert v. Skilbred, supra, 125 Or. 545, 551, 267 P. 396; In re Walther’s Estate, supra, 177 Or. 382, 397, 163 P. 2d 285; Allen v. Breding, supra, at p. 343.

Motive and opportunity for the exercise of undue influence are not enough. There must be proof that undue influence actually was exercised. Rice v. Rice, 95 Or. 559, 563, 188 P. 181; In re Will of Robert Carr, supra, 121 Or. 574, 581, 256 P. 390; In re Lobb’s Will, 177 Or. 162, 185, 160 P. 2d 295. The facts that Mrs. Amundson accompanied Mr. Levenson and Miss Shuholm to Mrs. Andersen’s home, where Mr. Levenson secured data to assist him in drawing the will, and thereafter continued with them to Mr. Levenson’s office where he dictated the will to Miss Shuholm, and returned with them to the hospital with the will after it had been typed, and was present when the will was executed, are not necessarily proof of undue influence, in the absence of any showing that Mrs. Amundson took an active part in the preparation of the will. In re Estate of Meier, supra, 190 Or. 140, 224 P. 2d 572, 577. These are matters for consideration upon the question of undue influence, but are not controlling. In re Southman’s Estate, supra, 178 Or. 462, 483, 168 P. 2d 572; In re Knutson’s Estate, supra, 149 Or. 467, 476, 495, 41 P. 2d 793. More particularly is this true when the will is prepared by a disinterested person and executed in the presence of disinterested witnesses, as was the case here. In re Faling’s Will, 105 Or. 365, 450, 208 P. 715. Obviously there was considerable esteem and affection between the testatrix and Mrs. Amundson. Influence arising from such is not undue. In re Darst’s Will, 34 Or. 58, 65, 54 P. 947; Holman’s Will, supra, 42 Or. 345, 358, 70 P. 908; Evans v. Anderson, supra, 186 Or. 443, 470, 207 P. 2d 165. According to Mr. Levenson’s testimony, the only time when Mrs. Amundson joined in the conversation regarding the will was when Mrs. Andersen stated to Miss Shuholm that she desired to have the residue of her estate go to Mrs. Amundson and her husband, whereupon Mrs. Amundson said: “You don’t have to do that, Randi,” and Mrs. Andersen answered: “You’ve been good to me, and I want you to have whatever I leave.”

In Newman v. Stover, 187 Or. 641, 213 P. 2d 137, which was a will contest case, the suit was dismissed on motion of the proponent of the will after the contestant had rested his case. We held such dismissal to have been error. Although the trial court felt that the evidence on the part of contestant was insufficient to sustain the charge of undue influence, it was, in our opinion, sufficient to make a prima facie case. In our view, the proponent should have been given an opportunity to meet such evidence, or, at the least, should have been required to rest his case before the court passed upon the motion to dismiss, to the end that the court’s decision might operate as res judicata. On the authority of Orsen v. Siegle, 170 Or. 153, 169, 132 P. 2d 409, therefore, the ease was remanded for further proceedings. Orsen v. Siegle was a suit to set aside a conveyance of land as in fraud of creditors. In the lower court the case was dismissed with prejudice, without the court having required any proof by defendants, although this court held on appeal that this was error, and that, on the record as it stood, plaintiff should have prevailed and the deed should have been set aside. In the case at bar, on the contrary, the contestants, who had the burden of proof of undue influence, had submitted all their evidence and had failed to sustain such burden. Nothing would be gained by remanding the case under such circumstances. The proponent sufficiently established the testamentary capacity of the testatrix, as to which she had the burden of proof. The contestants having failed to sustain the • burden of proof of undue influence, a motion to dismiss on the ground of failure of proof was proper under the statute. §9-208, O.C.L.A.; Haney v. Parkison, 72 Or. 249, 254, 143 P. 926, Ann. Cas. 1916D 1035. While, as stated in Newman v. Stover, supra, 187 Or. 641, 645, 213 P. 2d 137: “ Ordinarily, it is bad- practice -in equity for a defendant to move for a dismissal at the conclusion of the plaintiff’s case, ’ ’ the .statute permits such practice where the party having the burden of proof fails to make a prima- facie case.' ■ •

W’e''have considered the able and spirited dissenting'-opinion of Mr. Justice Warner. We think it tends to evaluate too highly the weight to be given the testimony of physicians and nurses as against the testimony of laymen under circumstances such as those in this case. It is true that no rebuttal evidence was offered against the professional testimony, but, if the lay witnesses were telling the truth as to what happened in connection with the drafting and execution of thé'will, no rebuttal testimony was needed.

The dissenting opinion suggests that the fact that Miss Shuholm and Mrs. Amundson did not testify is a circumstance' weakening proponents ’ case. It would, perhaps, have been better trial tactics for them to have testified, but Miss Shuholm and Mrs. Amundson were entitled to the benefit of the testimony of Mr. Levenson and Mrs. Edmonds, and to rest upon that alone if they saw fit. The dissenting opinion speaks of “the proponents”, but there was only one proponent, Miss Shuholm, who benefited by the will only to the extent of a token bequest of $100, and against whom nothing improper has been suggested.

The advanced age and critical condition of Mrs. Andersen at the time when she executed the will were the things upon which, in the main, the physicians based their opinion that she lacked testamentary capacity, but the probative force of their opinion evidence in this regard was, we think, overcome by the testimony of. the witnesses to the will, assuming the latter to have been worthy of belief. Cf. McCracken v. McCracken, 109 Or. 83, 86, 219 P. 196.

If the opinion evidence of physicians in such cases is to be permitted to outweigh emphatic and circumstantial testimony of reliable lay witnesses to facts which, under our decisions, have always been held to demonstrate testamentary capacity, a new rule will have been established in Oregon. The intelligent and detailed manner in which Mrs. Andersen described her property and the persons to whom she wished to devise and bequeath it surely cannot be brushed aside as a mere ‘ ‘ superficial manifestation of rationality”! Illustrations of what a person under hypnotic control may be induced to do (a matter respecting which there is no evidence in the case) would appear to be quite irrelevant.

The law does indeed require that a mentally ill person be examined by competent physicians before he is committed to the state hospital as insane. The physicians, having examined the supposedly insane person, merely report to the probate court in writing, under oath but ex parte, their verified findings that such person is mentally ill and in need of treatment, care or custody. Ch. 571, Oregon Laws 1949, § 4. The person under examination is entitled to be represented by counsel, and other “competent evidence” than the ex parte report of the physicians may be offered and must be considered. Idem. The statute, in this connection, may be, as the dissenting opinion intimates, “a positive recognition of the value of scientific disclosures”, but the law respects the rights of persons, and permits even an insane person, during a lucid interval, to make a valid will.

In Snyder v. De Remer, 143 Or. 414, 22 P. 2d 877, the testatrix had chronic bronchitis and arteriosclerosis. Shortly before she executed her will, she had been quite ill with influenza, was coughing badly, and was delirious, but there was evidence that she had recovered from that illness. She was 84 years old, and a guardian had been appointed for her. It was shown, by the testimony of a reputable attorney, Mr. Vinton, who drew her will, that, without reference to any memorandum, testatrix told him the names and places of residence of her nephews and nieces; stated that she had given one of them $2,000 a few months before, and that therefore she was bequeathing him only one dollar; and said that she wished to be buried beside her husband. She desired that one particular nephew should be named as executor, but, on being advised that he would be disqualified by reason of nonresidence, named another person in his stead. The will was upheld by this court as against an attack based upon asserted lack of testamentary capacity. We think that, in comparison with the evidence in that case, the evidence here fully demonstrated the testamentary capacity of the testatrix.

We do not in the least depreciate the testimony of professional witnesses. We say only that, as Dr. Belknap conceded, if the testimony of the subscribing witnesses was true, then the testatrix, notwithstanding her age and critical condition of illness, had testamentary capacity when she executed her will. Rejection of the testimony of the subscribing witnesses in this case, and adoption of the opinion testimony of the professional witnesses as conclusive, would indee4 be giving to the latter a'“dignity and persuasiveness” to which, in this case, it is not entitled.

We are of the opinion that the case was- correctly decided. The- decree is affirmed. No costs to any party. ■ ■ ' • ■ ‘