Barnstable v. U.S. Nat. Bank

• Decision Date: 06 September 1962
• Parties: Joan BARNSTABLE, Appellant, v. UNITED STATES NATIONAL BANK, a corporation, executor of the estate of James Witherspoon, deceased, Hugh Witherspoon, Robert M. Witherspoon, Mary Muldrow, William J. Witherspoon, Joseph T. Witherspoon, Samuel M. Witherspoon, and Annie L. Wilson, Respondents.
• Court: Oregon Supreme Court

Page 386

374 P.2d 386

232 Or. 36

Joan BARNSTABLE, Appellant, v. UNITED STATES NATIONAL BANK, a corporation, executor of the

estate of James Witherspoon, deceased, Hugh Witherspoon,

Robert M. Witherspoon, Mary Muldrow, William J. Witherspoon,

Joseph T. Witherspoon, Samuel M. Witherspoon, and Annie L.

Wilson, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 7, 1962.

Decided Sept. 6, 1962.

David C. Silven, Baker, argued the cause for appellant. On the briefs were Banta, Silven, Horton & Young, Baker.

W. L. Jackson, Baker, argued the cause for respondents. On the brief were Jackson & Johnson and Austin Dunn, Baker.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

WARNER, Justice.

In this suit plaintiff seeks a declaratory judgment determining that she is a pretermitted child of the testator, James Witherspoon, or, in the alternative, for a decree for the specific performance of an alleged oral contract for plaintiff's benefit made by and between the decedent and his wife, plaintiff's mother. From an adverse decree, plaintiff appeals.

In 1937, when Joan was about four and one-half years old, her mother married James Witherspoon. She thereafter resided with her mother and stepfather as a member of the family. In 1947 she was adopted by decedent and continued to reside with her parents until 1949 when she was married. The Witherspoons were divorced in 1950.

Mr. Witherspoon died in March, 1960, leaving a will dated June 3, 1953. The third paragraph read:

'To my foster daughter, Joan I leave the sum of $1.00.'

This was followed by a residuary clause leaving his entire estate to seven brothers and sisters in equal shares. These are the same persons named as defendants.

We first give attention to plaintiff's assignment of error arising from the holding of the court that plaintiff was named in Mr. Witherspoon's will and, therefore, is not a pretermitted heir as she claims.

She argues that the will provides for a 'foster daughter, Joan,' whoever that may be, but there is no provision for her as his 'adopted' daughter.

ORS 114.250 provides:

'If any person makes his will and dies, leaving a child * * * not named or provided for in such will, * * * every such testator, so far as regards such child * * *, not provided for, shall be deemed to die intestate; * * *.'

The object of the pretermission statute is to protect children from omission by oversight and not to require that an actual provision be made for them, nor that the children be designated by name. Gerrish v. Gerrish, 8 Or. 351, 354 (1888).

Plaintiff represents that Mr. Witherspoon's will contains no intimation that plaintiff was his daughter and does not name her; and that it would be conjecture and speculation to hold that plaintiff was named in the will. As indicated by Gerrish v. Gerrish supra, a child does not have to be designated by name, yet here someone by the name 'Joan' is designated who is described as 'my foster daughter.' We know from a reading of the will that the testator had a 'daughter' named Joan and from the further provisions of the third paragraph that it was the testator's intent to disinherit that daughter by leaving her the nominal sum of one dollar. If the daughter Joan was one of foster status, and no more, then there was no need for the third paragraph in the will because the children receiving the consideration provided by ORS 114.250, supra, are only those born to or adopted by a testator.

The descriptive phrase 'my foster daughter' creates at most a latent ambiguity when we know as we do that the testator had an adopted daughter by the name of Joan. 95 C.J.S. Wills § 636, p. 920; 57 Am.Jur. 681, Wills § 1050.

'* * * But it is not necessary that the beneficiary correspond in all respects to the description, it being held sufficient if he corresponds thereto in enough particulars to make it reasonably certain that he was intended and no other person exists who corresponds sufficiently to the description to raise a doubt as to the identity of the beneficiary. * * *' Thompson, Wills (3d ed), 412, § 262.

When a beneficiary is designated in a will both by name and description, as here, and there is a conflict between the name and the descriptive matter so that they do not accurately apply to the same person there is a latent ambiguity removable by extrinsic evidence. In re Devitt's Will, 12 Misc.2d 168, 172 N.Y.S.2d 848, 850; In re Sussman's Will, Sur., 60 N.Y.S.2d 609, 610; In re Nolan's Estate, 56 Ariz. 353, 108 P.2d 385, 387; Schnack's Estate v. Schnack, 155 Kan. 861, 130 P.2d 591, 596; In re Nessel's Estate, 164 Cal.App.2d 798, 331 P.2d 205, 209; Bristol v. Mazza, 288 S.W.2d 564, 566 (Tex.Civ.App.1956); 95 C.J.S., supra, § 646, at 942; 4 Page, Wills (Bowe-Parker Rev.1961), 252, § 32.6. See, also, Jones v. Dove, 7 Or. 467, 471 (1879); Putnam v. Jenkins, 204 Or. 691, 705, 285 P.2d 532; and Annotation, 'Admissibility of extrinsic evidence to aid interpretation of a will,' 94 A.L.R. 26 at 96, 104 (1935).

When the testator describes a relationship he knows did not exist, as Mr. Witherspoon had to know, but identifies the object of his bounty by name, he will be deemed to have made his benefaction with a knowledge of the nonexistence of the relationship described. In re Chambers' Estate, 112 Misc. 551, 183 N.Y.S. 526 (wherein the testator described twin foster children as his adopted children); In re Nolan's Estate, supra, 108 P.2d at 387; Schnack's Estate v. Schnack, supra, 130 P.2d at 596; 95 C.J.S., supra, § 646, at 942.

The plaintiff objects to the admission of evidence aliunde on the ground it goes to the testator's intent. Testator's intent must, of course, be gathered from the four corners of the will and without the aid of extrinsic evidence. But here, as we have indicated, the intent is clear; that is, the testator's determination to disinherit a daughter by the name of Joan. The permissible extrinsic evidence under the circumstances of this case goes only to clarify the identity of the party referred to as his daughter and, therefore, in a sense supplements and fortifies that intent. The courts allow a considerable latitude in the admission of testimony to accomplish that purpose. 4 Page, Wills (Lifetime ed), 643, § 1622.

We do not hold that the phrases 'adopted daughter' and 'foster daughter' are synonymous, but we recognize that they refer to relationships that have an important element in common which sometimes leads to an interchangeable use not justified where exactness should prevail. Neither an adopted child nor a foster child are born to the family where they receive parental care and solicitude. In short, neither are children of the blood. The distinctive difference in the terms when properly employed is that the adopted child, by reason of statutory adoption procedures, acquires the same rights of inheritance as does a child born to the parents of the adoption, whereas, the foster child does not obtain inheritable rights in the estates of foster parents under the laws of descent and distribution.

Had the testator more aptly described Joan as 'my adopted daughter' or as 'my daughter,' this phase of the litigation would have been avoided.

The admitted evidence clearly demonstrates to us that the 'Joan' named in the will was the plaintiff, Joan Barnstable. No children were born to the marriage between the testator and Joan's mother. Plaintiff testified that Mr. Witherspoon had no children other than herself. Her mother's testimony is in the same vein. At the trial, counsel for plaintiff confessed their inability to produce evidence of any person by the name of Joan who was associated with the testator.

We dismiss the question of pretermission as being devoid of merit.

We now turn to a consideration of plaintiff's alternative prayer for specific performance of a contract to make a will. Various aspects of this phase of the appeal are comprehended in plaintiff's last three assignments of error and will be reviewed together.

We find plaintiff making a two-pronged claim of agreement to give her an interest in her stepfather's estate. The first has its origin in the adoption proceeding. The second is a by-product of the Witherspoon divorce and is more particularly derived from the negotiation of the parties in that matter for the property settlement which the Witherspoons executed on November 14, 1950. All testimony concerning the formulation of both alleged agreements comes solely from plaintiff's mother, the former Mrs. Witherspoon.

Plaintiff in her complaint alleges that in consideration of the adoption proceeding in 1947, Mr. Witherspoon 'orally agreed with the plaintiff and with the plaintiff's mother * * * that he, the said James Witherspoon would make no effort to disinherit the plaintiff.' This rests upon a most tenuous showing; so tenuous, in fact, that it gives no support to the claim.

Plaintiff's mother places the situs for the adoption agreement in the office of Mr. Dunn, then acting as attorney for the Witherspoons in the adoption matter. When asked to state the conversation upon which plaintiff now relies, her mother answered: 'Well, in part, Mr. Dunn, warned him [Mr. Witherspoon] of his responsibilities. * * * and he also admonished Jim [the decedent] that he could not disinherit Joan.' And that constitutes the total testimony relative to the alleged adoption agreement. It is patent the evidence does not remotely suggest that Mr. Witherspoon was at that time a party to any form of agreement concerning his testamentary intentions toward Joan and no inference that he so obligated himself can be derived therefrom.

More interesting is the evidence of the promise which Joan's mother claims Mr. Witherspoon made to her at the time the Witherspoons were negotiating a property settlement for their impending divorce.

We first take note that for about seven years prior to the divorce the Witherspoons had been equal partners...