West Publishing Company, The Pacific Reporter (West Publishing Company, 1918)

Or.) DT ME KING'S ESTATE 319

is performed. And where the question Is un- ant It seeks to recover only the balance
affected by statute, the buyer cannot pass unpaid. At the time the defendant had all
title to another, even to a bona fide purchas- the means of knowledge of the true conditions
er for value. But although the title to the of the sale and title to the apparatus. Its
property does not pass, the buyer acquires a magnanimity in paying' the Engineering Com-
defeasible interest, which before breach of pany without ascertaining whether the con-
condition he may sell, and which upon per- tract which it had approved had been com-
formance of the condition becomes perfect. piled with, or taking Indemnity from that
Such a second vendee acquires not only the company in the construction of its plant, if
right of possession and use, but the right to the latter was the case, should not work a
become the absolute owner upon complying hardship upon plaintiff or a forfeiture of Its
with the terms of the contract Tiffany on title to the machine. See Van Allen v. Fran-
Sales, pp. 135-138; 35 Cyc. p. 675 et seq.; cis, 123 Cal. 474, 478, 56 Pac 340.
Singer Mfg. Co. v. Graham, 8 Or. 17, 34 Am. The findings of the trial court were sup-
Rep. 572; Schneider v. Lee, 33 Or. 578, 17 ported by competent evidence. Such findings
Pac. 269; Chrlstenson v. Nelson, 38 Or. support the judgment based thereon.
473,63 Pac. 648; Johnson v. IankovetB, 57 Or. We .find no error In the record, and the
24,102 Pac. 790,110 Pac. 398, 29 L. R. A. (N. Judgment is affirmed.
S.) 709; McDanlel v. Chiaramonte, 61 Or.
403, 122 Pac. 83; Francis v; Bohart, 76 Or. McCAMANT, J., took no part in the con-
W* 143 Pac. 920, 147 Pac. 755, T,. R. A. sideration of this case.
1916A, 922; International Harvester Go. v.
Bauer, 82 Or. 686, 162 Pac. 856; 1 Mechem
on Sales, § 599. (87 Or. 236)
[4-7] The case at hand is not like one In re KING'S ESTATE.
where a manufacturer or wholesale dealer KING v. TONSING.
ships goods on consignment to a retail mer- (Supreme Court of Oregon. Jan. 29, 1918.)
chant to be sold in the ordinary course of
trade and turn the proceeds over to the sell- L W n x s «=»52(1)—TESTAMENTARY CAPACITY
er. The conditional sale under considera- —BURDEN OF PROOF.
The burden of proof was on proponent to
tion was made on credit, and the contract establish the testamentary capacity of deceased
provided for renewals and extensions. Ac- by a preponderance of testimony.
cording to the stipulations of the con- 2. W n x s <fc=a55(l)—TESTAMENTARY INCAPAC-
tract to sell quoted above the taking of the ITY—SUFFICIENCY OF EVIDENCE.
In proceedings to probate a will, evidence
promissory note of the Engineering Company held to sustain a finding of testamentary inca-
by plaintiff for the amount due would not be pacity.
a payment, unless so agreed and understood. Department 1. Appeal from Circuit Court, '
The leniency shown in extending the time Multnomah County; O. U. Gantenbeln,
for payment of the property did not consti- Judge.
tute laches or tend to vest the legal title in Proceeding for probate of a will by Henry
the conditional vendee. The defendant ar- Tonsing, as executor, contested by Arthur Bt
gues that a conditional sale of property af- King. From the decree denying probate, pro-
fixed to the realty Is void as against a bona ponent appeals. Decree affirmed.
fide innocent' third party. The burden of
proving that the defendant was a bona fide On January 15, 1915, Sue Parrot King, the
purchaser was upon itself. In this respect wife of respondent A. E. King, died leaving
the defendant company failed. There was what purported to be her last will and testa-
evidence to support the finding of the trial ment, whereby the bulk of her estate, which
court to the effect that the defendant was seems to have been not more than $2,000 in
not an Innocent purchaser, or without no- value, was bequeathed to certain minor chil-
tice, and as such finding has the force and dren of her two sisters, and a small Interest
effect of the verdict of a Jury it cannot be in real property in Portland, Or., was be-
disturbed. In addition to this such claim Is queathed to her sisters Anna E. Chitty and
not specially pleaded and Is not in conso- Harriet May Tonsing and the respondent In
nance with the theory of the defendant's case equal shares, the approximate value of each
as demonstrated by its pleading. From a le- share being $111. Henry Tonsing, the hus-
gal standpoint the contract for the reserva- band of Harriet May Tonsing, was designated
tion of the title in plaintiff under the cir- therein as executor, and filed the will for
cumstances of this case would have great probate, whereupon Arthur E. King inter-
weight In determining whether or not the posed this contest on the grounds that the de-
machine had been so attached to the realty ceased was not at the time of the execution
as to become a part thereof, or was still a of the alleged will, of sound and disposing
chattel. 1 Jones on Mtgs. (7th Ed.) f 431. mind, and that said will was procured by un-
The plaintiff acted in good faith in the trans- due Influence exercised on the mind of de-
action, and concealed nothing from defend- ceased by her sisters Mrs. Tonsing and Mrs.
Chitty. The matter was tried out in the
C=»For other CUM aee tame topic and KBY-NUMBER in all Ker-Numbered DlgeaU and Indexes
Digitized by V J L N J V Lfc!
 West Publishing Company, The Pacific Reporter (West Publishing Company, 1918)
320 170 PACIFIC REPORTER
county court before Hon. T. J. Cleeton, coun-
ty judge, who found in substance that the
will was void by reason of the alleged undue
Influence; and upon an appeal to the circuit
court, Hon. C. U. Gantenbein presiding, the
decree was affirmed with findings substantial-
ly that the deceased was not of sound and
disposing mind at the time said will was ex-
ecuted, and was unduly influenced by her
sisters. The case is here upon appeal by pro-
ponent from this decree.
B. G. Skulason, of Portland (Clark, Skula-
son & Clark, of Portland, on the brief), for
appellant. Harrison Allen, of Portland (Grif-
fith, Letter & Allen, of Portland, on the brief),
for respondent
McBRIDE, C. J. (after stating the facts as
above). [1,2] The testimony taken in this
case is voluminous and somewhat contradic-
tory. The burden of proof was upon the pro-
ponent to establish the testamentary capacity
of the deceased by the preponderance of tes-
timony, and a careful reading of it satisfies
us that In this he has failed. A large number
of witnesses, some of them relatives by mar-
riage or otherwise, and who knew Mrs. King
intimately, have testified as to her weakened
mental and physical state, and expressed
their decided opinions that she was incapable
of making a will. These witnesses were
wholly disinterested, and their opportunities
for knowledge of the true mental condition of
deceased were good, and we are Inclined to
accept their testimony. It is true that other
witnesses tostlfled that in their opinion de-
• cedent possessed testamentary capacity, but
their opportunities for observation were ei-
ther slight or they were indirectly or direct-
ly beneficiaries under the will. Mr. Clark,
who prepared the will at the request of and
from data furnished principally by Mrs. Ton-
(Or.
sing, testified that he saw nothing to Indicate
mental Incapacity at the time the will was
executed, but he was in her presence only a
short time, and was not as well qualified to
judge of her condition as others who saw her
frequently and knew her intimately. Con-
sidering the kind and affectionate treatment
of Mrs. King at all times by her husband, the
will was an unnatural one to make. The fact
that it was prepared at the request of- one
of the beneficiaries and by data furnished
by her indicates that It was executed in se-
cret, that great pains were taken by Mrs.
Chltty and Mrs. Tonslng, whose children
were to secure the principal benefit of the
will, to keep the fact of its execution from be-
ing known to her husband, and that some of
these very persons were to the habit of re-
lating to deceased alleged gossip concerning
the morals of her husband, none of which
was shown to have had any foundation, goes
far to Induce the belief that undue advan-
tage was taken of her enfeebled mental con-
dition to poison her mind against him, with
a view to persuade her to disinherit him to
the advantage of the Interested parties.
Enfeebled mentality, secrecy, and self-in-
terest are three dangerous guests to be pres-
ent together at the making of a will, and they
were all there when this will was executed.
To attempt to discuss the evidence in detail
would needlessly Incumber the reports and be
of no value to anybody In the future. From
a careful consideration of the whole record
we are of the opinion that the conclusion
drawn from the testimony by both learned
judges who passed upon this case below was
correct, and that the decree should be af-
firmed.
BURNETT, BENSON, and HARRIS, JX,
concur.
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