Schultz' Estate, In re

Decision Date30 December 1959
Citation220 Or. 350,348 P.2d 22,81 A.L.R.2d 1121
Parties, 81 A.L.R.2d 1121 In the Matter of the ESTATE of Dorothea M. SCHULTZ, Deceased. Lester Henry SCHULTZ, Appellant, v. FIRST NATIONAL BANK OF PORTLAND (OREGON), executor of the last will and testament of Dorothea M. Schultz, deceased, Carol Nepper, Ronald Nepper, Frances Nepper, John Nepper, Ada Springer, Maude Teasley, Larry Wayne Becker, Evelyn Becker, Carol Becker, and all persons unnamed or unknown having any interest as heirs, devisees, legatees or distributees of Dorothea M. Schultz, deceased, Respondents.
CourtOregon Supreme Court

Gordon A. Ramstead, Eugene, for appellant. With him on the brief was Lynn Moore, Springfield.

McDannell Brown, Portland, for respondent First Nat. Bank of Portland (Oregon).

Before McALLISTER, C. J., and ROSSMAN, LUSK and WARNER, JJ.

WARNER, Justice.

This is one of the two proceedings wherein the same parties, Lester Henry Schultz is plaintiff and the First National Bank of Portland (Oregon), as executor of the last will and testament of Dorothea M. Schultz, deceased, and the heirs and devisees of Mrs. Schultz are defendants. Both cases were consolidated for purpose of argument here. 1

This first proceeding was initiated in the Probate Department of the circuit court for Multnomah county, in the matter of the estate of Dorothea M. Schultz, deceased, upon the petition of Schultz, seeking a determination of heirship pursuant to ORS 117.510 et seq.

Mrs. Schultz died without issue. The question presented here is whether the plaintiff is entitled to take the estate of Dorothea M. Schultz, as her sole, but pretermitted, heir. His claim to the status of an heir rests upon an alleged agreement to adopt him made by the decedent and her former husband in the state of Nebraska.

The pertinent, and only, allegations of the petition bearing on the adoption agreement read:

'IV.

'* * * That the said Dorothea M. Melcher and Edward T. Schultz were duly married at Wisner, Nebraska, on March 15th, 1911, and thereafter resided at Bonesteel, South Dakota until the parties were duly divorced on or about October the 15th, 1938, a period of over 27 years. That subsequent to the said divorce, the deceased, Dorothea M. Schultz, resided in Newport, Nebraska for about a year and a half and them moved to Portland, Oregon, in 1939, where she resided until the time of her death on or about November 29th, 1954.

'V.

'That on or about November, 1923, the deceased, Dorothea M. Schultz and her husband, Edward T. Schultz, made application to the Evangelical Lutheran Orphan's Home in Freemont, Nebraska, for a child to be adopted by them, and said Dorothea M. Schultz and her husband, Edward T. Schultz, were given your petitioner, who was born Lester Stoffer in Norfork, Nebraska, on April 7, 1919, as a child for adoption.

'VI.

'That the deceased, Dorothea M. Schultz, and her husband, Edward T. Schultz, did from the time that they took your petitioner from the said home on the agreement to adopt the said child, they retained your petitioner in their home, gave him their name 'Schultz', and to all intents and purposes considered your petitioner their natural child, and all of the relationship of parents and child were carried out and continued by the deceased, Dorothea M. Schultz, and her husband, Edward T. Schultz, toward your petitioner, the said child, your petitioner, considering himself to be the natural child of the said Dorothea M. Schultz and Edward T. Schultz and gave to his adoptive parents all of the love and affection and privileges that would be accorded to the natural parents, and your petitioner considered himself for all intents and purposes to be the child of said parents since having been taken from the orphan's home.'

This is not a suit for breach of contract, nor is it, strictly speaking, one for specific performance. It is a proceeding for the judicial determination whether status as an heir can be said to flow from the alleged agreement. In short, it stands as a petition to the court to apply to the agreement the equitable maxim treating as done that which parties intended should be done, namely, a consummation of the adoption of plaintiff as a son and hier of the Schultzes. 19 Am.Jur. 315, 316, Equity §§ 455, 457; Syverson v. Serry, 101 Or. 514, 529, 200 P. 921; Ruth v. Cox, 134 Or. 200, 207, 291 P. 371. See, also, Wooley v. Shell Petroleum Corp., 39 N.M. 256, 45 P.2d 927, 931; Tuttle v. Winchell, 104 Neb. 750, 178 N.W. 755, 757, 11 A.L.R. 814; and Wiseman v. Guernsey, 107 Neb. 647, 187 N.W. 55, where the maxim is applied to like agreements of adoption made in a foreign state.

Plaintiff appeals from the order of the court dismissing his petition.

The motion of the defendant bank, denominated a 'Motion to Strike Petitioner's Second Amended Petition,' indicates that it was both a motion and a demurrer and recited:

'1. That it fails to allege facts sufficient to entitle the petitioner to the standing of an heir or next-of-kin of the testatrix, Dorothea M. Schultz; and

'2. That the said second amended petition alleges no new or additional facts not set forth in petitioner's amended petition, which petition was stricken out upon motion and after hearing thereon.'

Although captioned a motion when its content also tests the petition's legal sufficiency, and the trial court treats it as a general demurrer, we will do likewise. Bliss v. Southern Pacific Co., 212 Or. 634, 637, 321 P.2d 324.

The order of dismissal does not reveal upon what ground the court premised its action in sustaining the demurrer.

The briefs of the parties are meager in argument and citations, offering little aid in this respect. Because of what is there said concerning the nature of the contract; that is, as an agreement for adoption having its origin in a foreign jurisdiction, we are led to the conclusion that this was probably the question giving the court its real concern and the sole matter argued in the probate court. The bank's position is that foreign agreements of this character will not be enforced by Oregon courts. The plaintiff argues to the contrary. If the bank found any other alleged elements of insufficiency in the pleading it failed to suggest them.

The statute (ORS 117.510 to 117.560, inclusive) upon which the plaintiff relies for a determination of his status as an heir of Dorothea M. Schultz is a special statute, providing an adequate, though not the exclusive, remedy for a simple and expeditious determination of questions of heirship within the ambit of every probate proceeding and as a matter collateral to the ultimate settlement and distribution of any given estate. It confers jurisdiction on the probate court for such a determination and lays out with great particularity the precise procedure to be followed.

Up to this time only three cases have come to this court which had their origin under these sections of the code: In re Norton's Estate, 175 Or. 115, 151 P.2d 719 156 A.L.R. 617; Kelley v. Kelley, 210 Or. 226, 310 P.2d 328. More significant to this appeal is a third and relatively recent case, In re Estate of Myers, 1953, 197 Or. 520, 254 P.2d 227. This last case was a proceeding under the special statute wherein plaintiff claimed to be the sole heir of an intestate decedent by reason of decedent's adoption of plaintiff and wherein the defendants contended that plaintiff had later been adopted by other parties. The issue was the validity of the second adoption decree.

Statutes of this character offer a method of determination which has commended itself to many other states. 26A C.J.S. Descent & Distribution § 79, p. 711; 16 Am.Jur. 830, Descent and Distribution § 61. And under statutes similar to ours, we find the courts in other states exercising jurisdiction to determine the status of parties who claim heirship by reason of an incomplete agreement to adopt, as does the plaintiff in this matter. In re Radovich's Estate, 1957, 48 Cal.2d 116, 308 P.2d 14; Johnson v. Superior Court, 1929, 102 Cal.App. 178, 283 P. 331; In re Garcia's Estate, 1940, 45 N.M. 8, 107 P.2d 866.

We will first take note of the provisions of ORS 117.510(2), (3) and (4) which specify the content of the petition and so far as pertinent to our consideration read as follows:

'(2) Any person claiming to be an heir of the deceased, or to be entitled to distribution, in whole or in part, of such estate may, as plaintiff, thereupon file a petition in the matter of such estate, setting forth with reasonable particularity the facts constituting his claim of heirship or interests as distributee. * * * The date and place of birth of the decedent, and the names of his parents, if known to the plaintiffs, shall be stated in the petition, together with such facts as are known to the plaintiffs respecting his past residence, and the full name, age, birthplace, residence and relationship to the deceased, of each plaintiff, shall be given therein; and the petition shall set forth facts sufficient to show that prima facie each plaintiff is entitled to be declared an heir or distributee of a share in the estate and the proportionate share to which he is entitled. * * *

'(3) Any persons who have not joined as plaintiffs in the petition, but who appear from the facts therein stated to have or claim rights as heirs or distributees, * * * shall be made defendants. It shall be stated also in the petition that none of the plaintiffs knows of any person not made a party therein who is or claims to be an heir or distributee of such estate. The name, age, residence and relationship to the decedent of each defendant shall be stated in the petition or otherwise it shall be stated therein that the same is not known to the plaintiffs, or any of them, and that the plaintiffs, have not been able to ascertain the same by reasonable diligence.

'(4) The petition shall also be directed against all persons unnamed or unknown having or...

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22 cases
  • DOES 1, 2, 3, 4, 5, 6, AND 7 v. State
    • United States
    • Oregon Court of Appeals
    • December 29, 1999
    ...will give effect to adoption agreements that are valid in the states in which they are made. See, e.g., Schultz v. First Nat. Bk. of Portland et al, 220 Or. 350, 359, 348 P.2d 22 (1959). Despite the difficulties in characterizing an adoption in terms of "general principles of contract law,"......
  • Owen v. City of Portland
    • United States
    • Oregon Supreme Court
    • November 4, 2021
    ...of sources. See, e.g. , Barcik v. Kubiaczyk , 321 Or. 174, 179, 895 P.2d 765 (1995) (federal law); Schultz v. First Nat. Bk. of Portland et al. , 220 Or. 350, 358-59, 348 P.2d 22 (1959), reh'g den. (1960) (Nebraska law); State Land Board v. Rogers , 219 Or. 233, 241, 347 P.2d 57 (1959) (Bul......
  • Franklin v. Biggs
    • United States
    • Oregon Court of Appeals
    • September 10, 1973
    ...to relinquish custody of his child is against public policy.' 212 Or. at 93, 318 P.2d at 940; Accord, Schultz v. First Nat. Bk. of Portland et al., 220 Or. 350, 359, 348 P.2d 22 (1960); Smith v. Green, 4 Or.App. 533, 540, 480 P.2d 437 Therefore we conclude: (1) the withdrawal of consent by ......
  • Lilienthal v. Kaufman
    • United States
    • Oregon Supreme Court
    • September 30, 1964
    ...prevalent conception of good morals, some deep-rooted tradition of the common weal.' Quoted in Schultz v. First Nat. Bk. of Portland, 220 Or. 350, 360, 348 P.2d 22, 27, 81 A.L.R.2d 1121 (1960). In the latter case we held the law of Oregon--that contracts to adopt were invalid--was not so fu......
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