# Porter v. United States National Bank

> Oregon Supreme Court · September 26, 1951 · 192 Or. 483

URL: https://www.frixlaw.com/law-library/cases/6909288

## Case

- **Full name:** IN THE MATTER OF THE ESTATE OF MARY PORTER, PORTER v. UNITED STATES NATIONAL BANK OF PORTLAND
- **Court:** Oregon Supreme Court
- **Decided:** September 26, 1951
- **Citations:** 192 Or. 483; 235 P.2d 894; 1951 Ore. LEXIS 269
- **Precedential status:** Published
- **Opinion:** Concurrence by Lusk
- **Judges:** Brand, Hay, Lusk, Rossman, Tooze
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

LUSK, J.
(specially concurring).
Mrs. Butler stood in a confidential relationship to her mother and was in fact, though not in form, her trustee. The evidence as to the existence of this rela *521 tionship, as to the testatrix’ previous wills, her relations with Mr. McCulloch and Mr. Skidmore, and the selection of Mrs. Butler’s attorney to draft the contested will so soon after Mrs. Butler’s visit with her mother, as well as the evidence of the contestant’s straightened circumstances as contrasted with the generous portion of her parents’ property already received by Mrs. Butler through the trust estate — all this without more, in my opinion, is sufficient to shift the burden of proof to the proponent.
The court, however, has gone farther than I would go in many of the deductions it draws from the evidence.
I am unable to agree with the court’s suggested inference that Mrs. Butler’s conduct in filing the claim against her father’s estate a year and a half before the contested will was executed indicates, or may indicate, an intention to dominate and control the will of her mother. The evidence is that it had the opposite effect; it was the reason why Mrs. Porter executed the will of December 3,1947, disinheriting Mrs. Butler.
The suggestions that Mrs. Sullivan informed Mrs. Butler of the contents of the will of December 3, 1947, and that Mrs. Sullivan acted for Mrs. Butler in witnessing the contested will, go beyond what I consider to be the limits of legitimate inference. Mrs. Sullivan was a straightforward and candid witness. She testified at length on both direct examination and cross-examination. It was open to counsel for the contestant to cross-examine her about these matters, but they refrained. So far as this record shows, no such contentions were advanced on the hearing below, and, since Mrs. Sullivan was given no opportunity to meet a charge seriously reflecting on her duty of loyalty to *522 her employer, Mrs. Porter, we should not give it any sanction here, even by indirection.
Neither do I attach the importance which the court apparently thinks should be attached to the evidence that Mr. Mead had the contested will in his possession shortly after Mrs. Porter’s death. Mr. Mead is not accused of wrongdoing by the court. The brief of counsel for the contestant states, “We make no criticism of Mr. Mead * * *. He did not know and had no occasion to know what had gone on back of the scene prior” to the execution of the will. If then, as the court concedes, it is not an uncommon thing for a testator to make the attorney the custodian of the will which he draws, what bearing does this fact, if it be such, have on the issue of undue influence? Of course, there is an apparent discrepancy on this point between Mrs. Sullivan’s and Mr. Mead’s testimony — a discrepancy which neither one of them was given the opportunity to clear up. But I am unable to see what possible motive Mrs.. Sullivan could have had for testifying that Mrs. Porter placed the will in the safe deposit box if that was not the fact. Her testimony in this regard came in quite incidentally when she was being cross-examined about the condition of Mrs. Porter’s health after she executed the contested will. In response to a question concerning Mrs. Porter’s ability to transact business Mrs. Sullivan related the incident of their going to the bank together for the purpose of leaving the will there. Everyone concedes that the will was executed and that, if it is valid, it revoked the previous will. Whether it was placed in a safe deposit box or left with Mr. Mead, is to my mind a matter of no moment whatever.
I concur in the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6909288. Public record. Not legal advice.