Daily capital journal. (Salem, Oregon) 1903-1919, 1905-08-02
buren,
WILL CASE
REVERSED
Judge Galloway Holds that
Deceased Was IncOmpe-
tent Sets Aside Will

case the injunction was made perma
nent, and the decree granted as prayet
for in the complaint. By stipulation
the guardian Of Francis Waiter. V
Waiter, was substituted as defendant
The contempt proceedings against
Waiter Bros, w. B. Brown and }. ]
Becker was dismissed.
In the Buren will case Judge Gallo.
way today reversed the decision of
Judge Scott, and holds that the testi.
mony Of the physicians shows clearly
that Mr.. Buren was incompetent TO
make will at the time. Below is Civ.
en- the full text of the verbal opinion.
In this case entitled in the matter Of
the estate Of A. b. Buren, deceased
appealed from the county court. IL
seems that Buren, deceased, was a long
time resident of Marion county. Ore.
gon. He died on the gath day Of Feb,
ruary, 1904. Prior to his death. on tho
18th Of February, he made his last
will, and executed the same in tho
presence Of witnesses. He disposed of
his property to his two children. Max
0. Buren, a son, residing in Salem, Ma.
rion county, Oregon, aged 80 years, and
Leda Buren,, daughter, residing in said
Marion countw, Oregon, aged 10 years,
He appointed his daughter sole exeeu.
trix Of his estate without bonds, and In
her petition for letters probate 1 notice
the probable value OF the real estate m
Marion county is $4,000, and he wat
possessed Of personal property in Ma.
rion county Of the probable value of |
$4,000. Now the son, Max o. Buren
is not satisfied with the disposition OF
his fathers property, and fled a pro
test, asking that the will be set aside
as the decedent was incompetent, and
was not in his right mind, owing 10 old
age and sickness, and upon the further
ground that the deceased had been rem
dered incompetent, by reason Of sick
ness and mental infrmity, at the time
70 dispne Il ais property intelligently.
The case was heard before the county
court court and Judge Scott, after all
the testimony had been taken. rem.
dered his decision. / have carefully
read his findings, and have also read tho
authorities cited by the attorneys in
the case on either side, and all of the
testimony was read over in the presence
Of the court, and since that time have
taken pains TO re-read a greater part
of the testimony. The point 10 pass
upon, as hold IL, in this ease is wheth.
or or not the deceased was in his right
mind, whether he was competent 10 ex.
eoute "A will at the time he did execute
1t, some six days before his death, and
lying on his deathbed. II is not the
province Of this court to consider
whether or not he made a just, distri.
button Of his property; he had right.
II he was in his right mind. with his
full mental faculties, to dispose of his
property just as he saw fit, either to
make an equal distribution or an un.
equal distribution, and to give one
child what he saw 1T, so long as he was
protecting himself by making a certain
allowance to the others II + not for
this court TO pass upon at that time
whether he equally divided his proper.
ty or made an equal distribution. or
just distribution, but whether he was
competent at that time TO execute the
win Judge Scott is very careful in G
his opinion, and / believed he tried TO !
be very candid and honest in il, but he
seems TO give equal weight TO the ties
timony Of the witnesses, irrespective of
their qualifications 10 pass upon the !
mental condition of the deceased at the
time he executed this will. This court ,
does not presume TO impeaeh the integ
rity or good intentions OF the writer of :
this will, or those who witnessed il
One can witness will and certify that
the person who made the will, the ties.
tatOr was in his right mind and all
those things, at the same time he mere.
ly testihes to the testator's signature
10 his viii; that is all he does, viz:
eertihes to the testator's signature.
Now there have been a number OF wit. u
nesses, some of them have been imma
terial, and certainly their testimony is
OF very little weight, not that their a
testimony has been false or anything of G
that kind, but il has very little weight
certainly in the rendering Of this De n
eisiOn as far as that goes There is the e.
testimony Of DR.. +. f. Smith, who at. a
tended this man, the deceased, for a d
year prior to his death. It seems he "
was constant in his attendance upon b
the deceased There is also the testi, m
nOny Of DR.. J. N. Smith, who was
tailed on the l6th or nth Of February q