Clark v. Portland Trust Bank

• Decision Date: 20 April 1960
• Parties: Helen CLARK, Respondent, v. PORTLAND TRUST BANK, a corporation, as Executor and Testamentary Trustee of the Estate of Harrie E. McCraney, deceased; Shriners' Hospitals for Crippled Children, a corporation; Joseph Baffaro; Mayme L. Doran; and Pearl Estelle Lee, Appellants.
• Court: Oregon Supreme Court

Page 51

351 P.2d 51

221 Or. 339

Helen CLARK, Respondent, v. PORTLAND TRUST BANK, a corporation, as Executor and Testamentary Trustee of the Estate of Harrie E. McCraney deceased; Shriners' Hospitals for Crippled Children, a corporation; Joseph Baffaro; Mayme L. Doran; and Pearl Estelle Lee, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 10, 1960.

Decided April 20, 1960.

H. H. Phillips, Portland, argued the cause for appellants. With him on the briefs were Phillips, Coughlin, Buell & Phillips, Clarence D. Phillips, Jarvis B. Black, Seitz, Easley & Whipple and Norman L. Easley, Portland.

Ferris F. Boothe, Portland, argued the cause for respondent. With him on the brief were Black, Kendall & Tremaine, Portland.

Before McALLISTER, C. J., and WARNER, SLOAN and HOLMAN, JJ.

WARNER, Justice.

This is a suit for specific performance of an alleged oral contract to make a will with provisions for a monthly payment of $250 in favor of plaintiff, Helen Clark, a stepdaughter of Harrie E. McCraney, deceased. The defendant Portland Trust Bank is the executor of the decedent's will, dated November 17, 1954, and hereinafter referred to as the second will. The other defendants, except the Shriners Hospitals for Crippled Children, are legatees under the second will who were not named as beneficiaries under the first will, executed on the fourth day of February, 1953. From a decree in favor of plaintiff and impressing upon the property of the estate of McCraney a trust to enforce the same, the defendants appeal.

Plaintiff was about two years old when her mother married McCraney in 1910. No children were born to that marriage, nor as far as this record reveals, did McCraney have any children by any previous union. As a result, there was an exceptionally strong and affectionate fatherdaughter relationship subsisting between plaintiff and her father which continued uninterrupted except for occasional outbursts of Mr. McCraney's temper. Some such incidents will be hereinafter referred to, but all, so far as we are informed, were eventually followed by amicable reconciliations and expressions of regret or apology on the part of Mr. McCraney. One of these occurred in 1929 when plaintiff married Mr. Clark, a man not approved by her father. The estrangement thus caused apparently continued until the birth of Mrs. Clark's first son, in February, 1932. Mr. and Mrs. Clark were divorced in 1949. From thence on plaintiff and decedent saw each other more frequently, increasingly so after her mother's death, in November, 1952.

In February or March, 1953, plaintiff had a conversation with Mr. McCraney in which he volunteered that he had made certain provisions in his will for the benefit of herself and two sons. This she testified to as follows:

'Q. Now, subsequent to the death of your mother, do you recall discussing--or do you recall a conversation between yourself and your stepfather regarding his will or his plans for a will, and, if so, state what that was? A. We never really had discussed anything of that kind, in the way of a definite will or anything; he just--one day we were talking in his living room and he did tell me--and I never saw the will, he said 'I want you to know that I have provided for the boys, I am leaving $5,000 for each of the boys which should help with their education. I don't have any family, I have absolutely no one in the world, and I will be leaving you--you can have my car, all my personal effects and there should be enough money to pay you in the neighborhood of $250 for your life.'

'Q. Did he indicate that he had a will presently in effect with that provision? A. He didn't actually show me a will. I think; I believe he said, 'I have made a will in those terms.''

This is confirmed by a copy of decedent's first will. It provided for payments of $5,000 each to plaintiff's two sons, whom he regarded and treated as his grandsons. It also contained a further provision for an income of $250 per month for plaintiff as long as she remained unmarried.

While visiting the decedent in his home sometime in July, 1953, there was an occurrence which temporarily alienated plaintiff and her father. It seems that an innocent remark of hers addressed at that time to a feminine guest and friend of her father's was misunderstood both by him and the guest. It caused him to imagine that plaintiff was improperly concerned about his personal affairs and prompted him to advise plaintiff the next day to no longer call him father and to inform her that he was going to revoke the provisions made for her in the will of February 4 1953. As reported and demonstrated by subsequent circumstances, Mr. McCraney was in error and his punishment of his daughter not justified.

Mr. McCraney carried out his threat to revoke the provisions made for Mrs. Clark in his first will. This elimination is reflected in the second will of November 17, 1954.

Plaintiff attempted unsuccessfully to conciliate the decedent and convince him that his attitude resulting from that incident was not warranted. Failing in her attempt to restore their erstwhile relationship, she left Portland on June 29, 1955, and moved to Sacramento, California, where she undertook steady employment with a local hospital, intending to remain there.

Sometime in April, 1956, her father went to Sacramento for the purpose of visiting plaintiff. Shortly after his arrival, he expressed his regret at his actions concerning the incident in his apartment in July, 1953. At the same time he proposed that if she would agree to give up her employment and residence in Sacramento and return to Portland and live with him in his apartment for the rest of his life, he would in consideration change his will by re-establishing the testamentary provisions formerly made in her behalf.

The plaintiff, not immediately accepting his proposition, deliberated upon it for several days. Before she announced her final acceptance, her father again called her and added four conditions of which we will take notice. These were agreeable to her and on May 15, 1956, she terminated all of her Sacramento connections and the following day established herself in the home of her father, where she remained as his daughter and companion to and until his sudden death from a heart attack on October 8, 1956.

In the intervening five months between Mrs. Clark's return to Portland and his death, decedent failed to make the testamentary changes which the plaintiff claims he agreed to make.

The defendants present for our attention three assignments of error: first, the representation that there was an insufficiency of proof of a contract; second, that even if an agreement was proved, there was not adequate evidence of performance on the part of Mrs. Clark to take it out from under the statute of frauds; and, lastly, that Mrs. Clark had so breached the agreement that she was not entitled to specific performance.

Consequently, the appeal turns primarily on fact, posing two questions for our consideration: (1) was there an enforceable contract as alleged by plaintiff, and, if so, (2) did she breach it as claimed by defendants.

We first address ourselves to the question concerning the proof of the contract.

As is more usual than unusual when a testamentary agreement is made between two close members of a family, the only evidence regarding the offer and acceptance which ripened into the contract comes solely from the plaintiff. Because of its importance to the solution of the questions presented, we set out in substantial entirety Mrs. Clark's account of the conversation had by and between her and her father in Sacramento in April, 1956:

'A. * * * And at 7:30 in the morning my 'phone rang, so when I answered it, I knew my father's voice; he had a distinctive voice, after all those years I recognized it. And he immediately said, 'Do you know who this is?' And I said, 'Of course I do.' So he told me that he had arrived in Sacramento the night before and tried to get me and I explained that I had been working * * *. So I told him * * * I had a car and could I pick him up and so he * * * told me he was staying at the Sacramento Hotel, and if I would come down there at 10:00 o'clock we could have breakfast and have a nice visit, which I did. We had breakfast, we visited up in his room * * *. Then we got in my car and I took him out to my apartment which he was very pleased, thought it was very nice, thought he would like to have one just like it. We sat there and visited and it was during that time that he asked me if I had ever thought of coming back to Portland. I said, 'Not definitely, I was very happy,' explained--I spent quite a bit of time telling him about the job and how the boys [plaintiff's two sons] had been down and that Michael was due to arrive in a couple days. So that was it, we talked about my job, and finally he said, 'It seems a very silly thing, here you're all alone down here in Sacramento, I'm all alone in Portland and whatever that disagreement we had was over, I have even forgotten, I am sorry about it now, I don't even remember it, but I'd like to have you come back to Portland if you would consider it.' It took me by surprise, because I had just felt that I was really established in Sacramento. So I said, 'I might think it over, it was kind of lonesome down there, but I had been lonesome up here too.' Then he said that he could not understand why I would like to live down there, he never liked Sacramento as I did, he couldn't understand that, and if I would give it some consideration, he said, 'If you'd come back to Portland you could live with me.' I realized that I couldn't do that because he had a one-room apartment, there would be no place for me. He said, 'Well, we can make arrangements for that.' So he also said that--he said, 'You're all alone down here.' He said, 'What security do you have?' And I said, 'Well, just as much as I'd have any place else.'...