dissenting.
This is an extremely close case on the facts and, therefore, the land of case in which a dissent conld indicate merely an excess of argumentativeness. Nevertheless, I do dissent in the belief that the majority opinion tends to weaken two important principles. First, apparently, the finding of the trial judge that undue influence was exerted is given little weight. Second, the principle that bequests to the draftsman of the will are “reprehended by law” was in effect stated, but held to be of insignificant force. In re Lobb's Will, 177 Or 188, 160 P2d 295 (1945).
This is an equitable proceedings in which this court tries the facts de novo. However, this court has repeatedly said that in this type of proceedings, when the facts are in dispute and the inferences and innuendoes to be drawn from the testimony are several, great reliance is to be placed upon the findings of the trial judge. Clauder v. Morser, 204 Or 378, 391, 282 P2d 352 (1955). The trial court judge, Judge Dickson, as judge in the department of Probate in Multnomah County, tries more will contest cases than any other judge in Oregon. The court wrote a short letter opinion and made formal findings of facts. In both it found Miss Larson and Mr. Bobnett had unduly influenced the testatrix. Some of the conclusions of the majority rest upon conflicting testimony, such as the conclusion as to Mrs. Stack’s physical and mental condition and her susceptibility or lack of susceptibility to the influence of others. Other conclusions of the majority necessarily accept as completely accurate the testimony of Miss Larson and Mr. Bobnett. By its findings the trial court must necessarily have rejected, as uncredible, all or part of their testimony.
“How can we say the judge is wrong? We never *419saw the witnesses.” Clauder v. Morser, supra, at 392, quoting from United States v. Oregon Med. Soc., 343 US 326, 339, 96 L ed 978, 72 S Ct 690, which in turn quoted from Boyd v. Boyd, 252 NY 422, 429, 169 NE 632, 634.
As for the second proposition, Miss Larson, using the language of the residuary clause of the old will, typed the residuary clause in the new will and inserted her name as residual beneficiary.① According to Miss Larson, this was done at Mrs. 'Stack’s request. It is certain Miss Larson was not at this time acting as a typist, typing what her employer told her. Therefore, this case can be classified as one in which the beneficiary prepared the will naming her as beneficiary.
However, there was evidence that before the will was executed, Mr. Eobnett discussed the typed will with Mrs. Stack, out of Miss Larson’s presence, and approved Mrs. Stack’s designation of Miss Larson as residual beneficiary.
These facts can be regarded as presenting a situation in which a fiduciary is made a beneficiary, but it is contended that the testatrix had advice independent of the fiduciary. This was the situation in In re Lobb's Will, 173 Or 414, 145 P2d 808 (1944), 177 Or 162, 160 P2d 295 (1945). In that case the testatrix was approximately Mrs. Stack’s age. Mr. Wilson had been her attorney for some time. According to him, the testatrix told him she wanted to make a will and designate him as one of the bene*420fieiaries. Wilson told her she should not do that but should leave it to her relatives. She stated a logical reason why she did not want to do that. He told her he could not draw a will in which he was named a beneficiary. 'She asked if he could not get somebody else to draw the will and he suggested a lawyer whom he knew had done some legal work for her. The testatrix asked if the man with whom Wilson shared offices could not draw it. Mr. Edward J. Clark was this man. Wilson came back to his office and told this to Mr. Clark, as well as other terms the testatrix wanted in her will. Mr. Clark drafted a will accordingly. Mr. >Clark, his wife, and the secretary that Wilson and Clark shared, took the will to Hillsboro, where the testatrix then resided. Mr. Clark went over the will paragraph by paragraph with the testatrix to make certain she was competent and that he had drafted the will correctly. During this conversation the testatrix related what a good friend Mr. Wilson was and that she felt no obligation to her relatives. Mr. Clark did not attempt to dissuade the testatrix from this expressed desire of hers to make Mr. Wilson her principal beneficiary and leave nothing to her nieces and nephews.
This court in the Lobb case stated:
“* * * Mr. Clark, whom he called in to draw the will, could not be regarded as an independent ad-visor. He shared a suite of offices with Mr. Wilson, and handled a considerable portion, if not all, of his court work. * * * his situation [Mr. Wilson’s], * * * should have prompted him to insist upon her procuring independent advice. [Citation] By ‘independent advice’, we do not mean necessarily the advice of a lawyer. The necessities of the situation would have been satisfied if the testator, before executing the will, had had the privilege of *421conferring fully and confidentially with a disinterested and competent person who was disassociated from the interests of the proposed beneficiary. * * * Mr. Clark, in fact, was not an independent adviser; * * His friendship and admiration for Wilson neutralized him in advance.” (Emphasis supplied.) In re Lobb’s Will, supra (177 Or at 187).
In this case the undisputed fact is that Miss Larson had been secretary for the Robnett office since 1927 and for Mr. Edward Robnett since 1946. All the testimony was that she was one of those indispensable secretaries of long experience who can and do perform almost all the duties of a lawyer. With reference to Miss Larson, Mr. Robnett definitely was not “a disinterested * * * person who was disassociated from the interests of the proposed beneficiary.”
In re Lobb’s Will, supra, also involved a legal secretary. This secretary, Miss Bruns, had worked for Mr. Wilson for 20 years. Her relationship to the testatrix was similar to that of Miss Larson to Mrs. Stack, as testified to by Miss Larson. Miss Bruns drew a codicil and had the testatrix execute it. Either Mr. Wilson never saw the codicil or he inspected it only for form. The codicil revoked another bequest in the will and thereby made Mr. Wilson the sole beneficiary. The court commented on this as follows:
“* * * Although it was drawn by his own employee, and its effect was to make him sole beneficiary of Mrs. Lobb’s estate, Mr. Wilson once again, as when the will was drawn, failed to observe the amenities of the situation. He says that he did nothing beyond approving the form, but what he should have done was to have taken affirmative steps to eliminate both his employee and himself from a situation in which his personal interests *422conflicted with his fiduciary obligations.” In re Lobb’s Will, supra (177 Or at 189).
This court in the Lobb cases twice reversed the trial court’s finding that the will had been executed without undue influence. There was in those cases testimony that Mr. Wilson had lavished undue attention upon the testatrix. This was denied. There was also testimony that the testatrix had friendly relations with her nephews and nieces. However, if the testimony of Mr. Wilson and his secretary was accepted as accurate, the will would have to be upheld. In Lobb the testimony adverse to the beneficiary does not appear to me to be any stronger evidence to support the presumption of undue influence than the uncontradicted evidence here that the testatrix desired that the bulk of her estate go to organizations whose purpose was to aid children, whereas, the will devised it, without any restrictions on its use, to Miss Larson.
In the present case the trial court’s finding of undue influence is reversed by the majority. In the Lobb cases the trial court’s finding of no undue influence was reversed twice by this court.
According to Miss Larson and Mr. Robnett’s testimony, Mrs. Stack conferred with Mr. Robnett prior to executing the will. If this be the fact, perhaps the transaction should be viewed as one in which Mr. Robnett prepared the will and Miss Larson should be regarded as simply doing the mechanical work of typing the will. If Mr. Robnett himself had been made the principal beneficary, the comment in 1 Jaureguy and Love, .Oregon Probate Law and Practice, 312, § 317, is appropriate: “one cannot read the decisions of the Oregon court without obtaining a distinct, and rather strong, conviction that a lawyer who attempts *423to defend a bequest from a client to bimself in a will he has prepared faces a real task, an uphill fight.”
Here, the lawyer was not bequeathed the residuary. The beneficiary named, however, was in a close, longstanding relationship with Mr. Robnett.
“If the will is drawn, or if its execution or preparation and execution are caused, by the husband, or the father, or the son, or the agent, of the beneficiary, the same principles apply as apply where the beneficiary himself acted.” 3 Page, Wills (Bowe-Parker Rev), 623. In re Estate of Porter, 192 Or 483, 235 P2d 894 (1951), approved this principle; there an agent was found to have caused the preparation of the will.
In my opinion the rule should be the same whether the beneficiary be a relative of the lawyer drafting the will or his secretary with a long and close relationship. If a client desires to name the lawyer’s secretary as a beneficiary, the lawyer should take the same action as if the client desires to name him as a beneficiary; have another attorney, disassociated with the lawyer and his secretary, draft the will and supervise its execution. Any other course rightly will cause suspicion.
The majority opinion believes the five codicils are strong evidence rebutting the presumption of undue influence. They are strong evidence that Mrs. Stack had testamentary capacity at the time of their execution. However, on the question of undue influence they have the same weakness that attended the preparation and execution of the original will. Only Miss Larson can testify what Mrs. Stack’s purported directions were for the preparation of the codicils. The purported directions on all five codicils were given only to Miss Larson. All codicils were prepared by either Miss Larson or Mr. Robnett. Again, no inde*424pendent advice was suggested or given. The lawyer supervising the execution of the fifth codicil shared offices with Mr. Robnett. He testified he did not attempt to advise Mrs. iStack and did not discuss with her what was in the codicil or her original will. He asked her only if she knew that by executing the codicil she was changing her will. Only Miss Larson or Mr. Robnett know whether or not Mrs. Stack would have changed the residual beneficiary if she had had independent advice. The codicils were subject to the same presumption of undue influence as was the will.
Aside from the two propositions to which this opinion is primarily directed, I believe the majority is overly persuaded by the argument and seeming fact that Mrs. Stack, rightly or wrongly, did not want her heirs, except her cousin Ray Cline, to receive any of her estate. If this will is set aside these heirs will receive her estate. This same circumstance is true in many will contest cases. However, in all these eases the testator’s intention as to what, if anything, his heirs should receive, is only relevant to the issue of whether the named beneficiaries were so named because of undue influence exerted on the testator. If it were exerted the will is set aside. In many instances the laws of descent result in the estate passing to persons different than those whom the testator would have devised it had not undue influence been exerted. The question of whether or not a will is valid is not determined by deciding whether the beneficiary designated by reason of undue influence is closer to the testator’s intent than the beneficiaries who would inherit under the laws of descent.
In re Brown’s Estate, 165 Or 575, 108 P2d 775, concerned a will in which the beneficiaries were the lawyer who drafted the will and another who occupied *425a fiduciary relationship to the decedent. This court reversed the trial court and set aside such -will. This action resulted in a final disposition contrary to what the court believed was the testator’s true intention. The court stated:
“We are convinced that Tim Brown knew he was making a will but it is not believed that he intended to devise and bequeath absolutely and forever the residue of his estate to the defendants. We think he intended to leave his property in trust with the defendants. * * *” (at 588)②
I am fearful that the majority opinion has lowered the high standards which should be observed in judging the validity of a bequest to a lawyer or a member of his office, made in a will drafted by the lawyer or by a member of his office.
O’Connell, J., joins in this dissent.Miss Larson’s participation was different than that of the typist-beneficiary in In re Estate of Meier, 190 Or 140, 224 P2d 572 (1950). In that case the beneficiary typed the will naming her as beneficiary, but she did so at the direction of the testator’s lawyer. The testator’s lawyer had no connection with the typist-beneficiary. These facts are not clearly stated in the opinion, but the transcript of testimony clearly proves these were the facts.
The testator’s true intent, as found by this court, was to have the lawyer hold the estate in trust until the testator returned to this earth to enjoy his estate. This was a religious belief of many old Indians.