Bergsvik v. Bergsvik

• Decision Date: 07 December 1955
• Citation: 205 Or. 670,291 P.2d 724
• Parties: Lars R. BERGSVIK, Appellant, v. Loyalty BERGSVIK and Portland Trust Bank, Administrator with the Will annexed of the Last Will and Testament of Sarah W. Bergsvik, Respondents.
• Court: Oregon Supreme Court

Page 724

291 P.2d 724

205 Or. 670

Lars R. BERGSVIK, Appellant, v. Loyalty BERGSVIK and Portland Trust Bank, Administrator with

the Will annexed of the Last Will and Testament of

Sarah W. Bergsvik, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 13, 1955.

Decided Dec. 7, 1955.

B. G. Skulason, Portland, and John Wilkinson, Vancouver, Wash., argued the cause and filed a brief for appellant.

Leonard D. Alley, Portland, argued the cause for respondents. With him on the brief was John D. Williams, Portland.

Before WARNER, C. J., and TOOZE, LATOURETTE and PERRY, JJ.

TOOZE, Justice.

This is an appeal from a decree of the circuit court of Multnomah county which was entered in a suit brought by Lars R. Bergsvik, Jr., as plaintiff, against Loyalty Bergsvik, as devisee, and the Portland Trust Bank, administrator with will annexed of the estate of Sarah W. Bergsvik, deceased, as defendants. The complaint asked that the order admitting the last will and testament of Mrs. Bergsvik to probate be set aside, and that the will, so far as it conflicts with a 'Community Property Agreement' entered into between the testatrix and her husband, be held for naught, and that, according to the terms of this agreement, the defendant, Loyalty Bergsvik, be required to execute a conveyance to the plaintiff of an undivided one-half interest in certain realty, or upon his failure to do so, that the decree as prayed for shall operate as such in lieu thereof. From a decree denying the relief sought and dismissing the suit, plaintiff appeals.

On and prior to May 27, 1942, Lars Bergsvik, Sr., and Sarah W. Bergsvik were husband and wife and domiciled in Portland, Oregon. On that date they executed and acknowledged what is entitled a 'Community Property Agreement', the complete text of which is as follows:

'Community Property Agreement

'Whereas, Lars Bergsvik and Sarah W. Bergsvik, the undersigned, are husband and wife, and are the father and mother of Loyalty Bergsvik and Lars R. Bergsvik, Jr., who are their heirs at law and sole heirs at law; and,

'Whereas, Lars Bergsvik and Sarah W. Bergsvik are the owners of certain real property and personal property in Pacific County Washington, which was acquired during their marriage, is community property, and consists of the following:

'(a) Certain real property consisting of pipeline right-of-way of Chinook Water Works, fully described in deed recorded in Volume 80, page 54, Deed Records of Pacific County, Washington.

'(b) The home of Lars Bergsvik and Sarah W. Bergsvik in the town of Chinook, Washington, fully described in deed recorded in Book 102, page 426, Deed Records of Pacific County, Washington, together with the furniture and furnishings therein; also the real property described in deed recorded in Volume 81, page 411, Deed Records of Pacific County, Washington.

'(c) All personal property belonging to Chinook Water Works, consisting of pipeline equipment, accounts receivable, State and county franchises, water rights and Good Will.

'And, Whereas, the undersigned are desirous that said property and any other property which they may hereafter acquire shall pass without delay or expense, in case of the death of either of the parties, to the survivor, each having faith in the other that the survivor will make adequate provision in the event of his or her death to bequeath and devise said property to their sons, Loyalty Bergsvik and Lars R. Bergsvik, Jr., above named, in equal proportions;

'Now Therefore, in consideration of the love and affection that each of the parties hereto has for the other, it is hereby agreed that in case of the death of the said Sarah W. Bergsvik while the said Lars Bergsvik survives, the whole of said property above described, together with any and all other property by them hereafter acquired in the State of Washington, shall at once vest in Lars Bergsvik in fee simple. In the event of the death of the said Lars Bergsvik leaving the said Sarah W. Bergsvik surviving him, the whole of said property above described, together with all other property hereafter acquired in the State of Washington, shall at once vest in Sarah W. Bergsvik in fee simple, and we hereby certify and declare this agreement shall not and will not in any way derogate the rights of any creditors, but is entered into solely for the purpose of transferring all our property to the survivor in the event of the death of either, without delay or expense.

'In Witness Whereof, we, the parties to this agreement, have hereunto set our hands and seals this 27th day of May, 1942.

'[Sgd.] Lars Bergsvik

[Sgd.] Sarah W. Bergsvik

'Executed in Presence of:

[Sgd.] Kathleen L. Williams

[Sgd.] John D. Williams

'State of Oregon

County of Multnomah}ss.

'I, John D. Williams, a Notary Public in and for said State, do hereby certify that on this 27th day of May, 1942, personally appeared before me Lars Bergsvik and Sarah W. Bergsvik, to me known to be the individuals described in and who executed the within instrument, and acknowledged that they signed and sealed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned.

'In Witness Whereof, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

'[Sgd.] John D. Williams

'[Notarial Seal]

Notary Public for the State of Oregon, residing at Portland, in said County. My commission expires March 17, 1945.' (Italics ours.)

Lars Bergsvik, Sr., died intestate on August 6, 1942, and at that time he and his wife presumably owned all the property involved in this suit, the water works, a home, and a vacant lot, all located in the state of Washington, and the family home located in Portland, Oregon. The evidence does not disclose with certainty how the titles to these Washington properties were vested. The home in Portland belonged to Sarah Bergsvik, and title thereto was in her name only. There is in evidence an assumed business name certificate filed in the superior court for Pacific county, Washington, on November 12, 1941, stating that Sarah W. Bergsvik and Lars Bergsvik were the proprietors of the Chinook water works. Also there is testimony that the husband and wife purchased the water works property with funds raised by giving a mortgage on the Portland home and by borrowing additional funds secured by a promissory note signed by both of them. It is true that there is in the record a statement by the plaintiff himself that Lars Bergsvik, Sr., was the sole owner of this property; however, there is no further evidence tending to support this conclusion upon his part. As to the state of the title to the other two properties, the house and vacant lot in Chinook, at the time the agreement was entered, the record is silent.

However, irrespective of the true condition of the titles, upon the death of Mr. Bergsvik, Sarah Bergsvik took possession of all this property pursuant to the agreement above mentioned and, with some aid from her sons, operated the water works until her death on March 7, 1952.

At her death she left a will appointing Loyalty Bergsvik, the defendant, executor, and this will was presented for and admitted to probate in the circuit court for Multnomah county, Oregon, probate department. Ancillary proceedings were also instituted in Pacific county, Washington.

The material portions of the will are as follows:

'Third

'* * *

'I also give, devise and bequeath to my son Loyalty Bergsvik, the following described real and personal property:

'(a) All of the Chinook Water Works, which includes certain real property consisting of pipeline, right-of-way of Chinook Water Works, reservoir site, fully described in deed recorded in Volume 80, page 54, Deed Records of Pacific County, Washington. All other property, real or personal, belonging to Chinook Water Works, consisting of pipeline equipment, accounts receivable, State and County Franchises, water rights and Good Will;

'(b) My home in the Town of Chinook, Washington, fully described in deed recorded in Book 102, page 426, Deed Records of Pacific County, Washington, together with the furniture and furnishings therein;

'(c) Also all other real property I may own in Chinook, Washington, except one corner lot 50 X 200 feet, in Tract 105, Town of Chinook, Pacific County, Washington.

'The bequest and devise of the Chinook Water Works to my son, Loyalty Bergsvik, shall not become effective unless prior to the closing of my estate he make, execute and deliver or tender to my son, Lars R. Bergsvik, his unsecured installment promissory note in the amount of Six Thousand Dollars ($6,000), payable in monthly installments of not less than Forty ($40.00) per month, said note to bear no interest and shall provide that the first monthly payment of $40.00 be made by my son, Loyalty Bergsvik, to my son, Lars R. Bergsvik, within thirty (30) days following the closing of my estate, with like payments of $40.00 per month each month thereafter.

'In the event of the death of my son, Lars R. Bergsvik, at any time before the said $6,000 promissory note is paid said note shall be cancelled and not become an asset of the estate of my son Lars R. Bergsvik.

'In the event my son, Loyalty Bergsvik, does not give said promissory note for $6,000 to my son, Lars R. Bergsvik, the Chinook Water Works shall then become a part of the residue of my estate and be distributed under the provisions of the residuary paragraph, being Paragraph Fifth hereof.

'Fourth

* * *

* * *

'I also give and devise to my son Lars R. Bergsvik my home in Portland, Oregon, described as follows: Lot Three (3), Block Four (4) Keystone Addition to the City of Portland, Multnomah County, Oregon; also one corner lot, 50 X 200 feet, in Tract 105, Town of Chinook, Pacific County, Washington.'

The residue of her property she gave to the two sons equally.

It is plaintiff's contention that in making her will as she did, his mother violated the...