Appeal from Circuit Court, Wasco County. William Wells, Judge.
M. D. Van Valkenburgh, The Dalles, argued the cause for appellant. With him on the brief were Heisler & Van Valkenburgh, The Dalles.
Donald Winfree, Portland, argued the cause for respondents. With him on the brief were Edwin J. Welsh, and Welsh, O'Donnell & Winfree, Portland.
Bryson, Justice. O'Connell, Chief Justice, and McAllister, Denecke, Holman and Howell, Justices.
Plaintiffs, personal representatives of the estate of Howard Belshee, brought this suit to set aside certain inter vivos transfers of property made by the deceased, Howard Belshee, to the defendant, Jessie M. Martin, and to obtain other equitable relief. The plaintiffs alleged fraud, misrepresentations, duress, undue influence, lack of consideration, and abuse of a confidential relationship on the part of defendant as grounds for the relief prayed for.
The trial court entered judgment in favor of plaintiffs and a written memorandum opinion specifically finding that defendant had failed to meet her burden of proof in rebutting the presumption of undue influence and duress. Defendant appeals.
We try the case de novo. A review of the evidence discloses the following, most of which is set forth in the memorandum opinion which was, by reference, made a part of the decree.
At the time of his death, Howard Belshee was 89 years old. He and his wife had no children and he had outlived most of the other members of his family. He was survived by three nieces, Marie Pierson, Emmalyn Wilson (a plaintiff), and Jessie Martin (defendant), daughters of each of the deceased's three brothers, and two grandnieces, daughters of Jessie Martin. In former years, defendant had been a frequent visitor to the deceased's home in Sherman County. However, she had not seen the deceased for several years prior to the time that she received a telephone call from one Tony Miller, who advised her that her uncle was alone and in need of someone to care for him.
After 1961 a couple by the name of Bartlett had
lived with and assisted decedent. When Mrs. Bartlett died this arrangement was terminated. In December 1969 the niece Emmalyn Wilson wrote to the defendant explaining the circumstances under which the deceased was living and indicated that some assistance must be provided. Defendant did not respond to this letter. The deceased refused to go to or stay in a nursing home. With no other alternative, the plaintiffs took turns staying with deceased, cleaning his house and preparing his meals. On November 1, 1970, the plaintiffs had to make their annual move to the mountains where Emmalyn Wilson could obtain relief from asthmatic and hay fever symptoms. Frank Belshee, the deceased's brother, came up from Portland each week during the summer and stayed three or four days to substitute for the plaintiffs. However, Frank Belshee was involved in an accident on one of the trips and died from the injuries he sustained.
During his lifetime, the deceased was an independent and dominant person. He had acquired three parcels of real property in The Dalles, two of which were rentals, a substantial bank account, and the balance due him on a note from Tony Miller. At the request of the deceased, plaintiff J. E. Wilson had been named as his conservator to assist in caring for his business affairs, including the collecting of rents and the paying of bills. Eventually the deceased and J. E. Wilson disagreed over the way the conservatorship was to be handled and it was mutually terminated by an order of the court dated July 31, 1970. J. E. Wilson transferred all the bank ...