Cook v. Walsh

• Decision Date: 19 March 1979
• Docket Number: No. A7701,A7701
• Citation: 591 P.2d 1201,39 Or.App. 357
• Parties: Betty Jane COOK, Respondent, v. Heston WALSH and Mary Walsh, Co-Personal Representatives of the Estate of Harold Wurtz, Deceased, Heston Walsh, Mary Walsh and Fred Wurtz, Appellants. 00241; CA 10847.
• Court: Oregon Court of Appeals

Page 1201

591 P.2d 1201

39 Or.App. 357

Betty Jane COOK, Respondent, v. Heston WALSH and Mary Walsh, Co-Personal Representatives of the Estate of Harold Wurtz, Deceased, Heston Walsh, Mary Walsh and Fred Wurtz, Appellants.

No. A7701 00241; CA 10847.

Court of Appeals of Oregon.

Argued and Submitted Dec. 20, 1978.

Decided March 19, 1979.

Richard L. King, Portland, argued the cause and filed the brief for appellants.

John F. Cramer, Jr., Portland, argued the cause for respondent. With him on the brief was Cramer & Cromwell, Portland.

Before SCHWAB, C. J., RICHARDSON and JOSEPH, JJ., and TONGUE, J. Pro Tem.

JOSEPH, Judge.

This suit arises from the joint and mutual wills of decedents Bessie and Harold Wurtz, who were married, and the agreement on which those wills were based. Plaintiff is the niece of Bessie Wurtz. Defendant Heston Walsh is the nephew of Harold Wurtz, and defendant Mary Walsh is his wife. Defendant Fred Wurtz is Harold's brother.

In 1972, when Bessie was 78 years old and Harold was 69, they entered into an agreement to execute wills so that their combined property would not go entirely to the heirs of the one who survived the other. They agreed that upon the death of either, the residue of his or her estate (after debts and funeral expenses) would pass to the survivor. On the death of the survivor, the residual estate (after debts, funeral expenses and a $2,000 bequest to Helen Jones, a friend) would be divided equally between certain of her relatives and certain of his.

A joint will was drawn and executed in accordance with the agreement in August, 1972. The third paragraph provided:

"In the event that my spouse shall not be living at the time of my death, I give, devise and bequeath all the rest and residue of my estate to the following named persons, to-wit: $2,000.00 unto Helen Jones * * * Fifty percent (50%) of the remainder of my estate unto Betty Jane Cook, niece of Bessie L. Wurtz * * * and fifty percent (50%) of the remainder of my estate unto Mary Walsh, niece of Harold Wurtz * * *."

The sixth paragraph provided:

"I hereby certify and declare that this will has been executed in compliance with a solemn agreement between the testators that neither of us, after the death of the other, shall have any right to revoke this will so far as it relates to any and all bequests in favor of the relations of the blood of the other."

The testators took the original will. The attorney who drafted it kept a copy.

At the time the joint will was executed, the testators were living in a mobile home in Nehalem. In late 1973, they moved to a mobile home park in Beaverton. In January, 1976, when their health began to fail, they moved in with plaintiff. She quit her job to care for them. The mobile home was sold, and the proceeds were used to build an addition onto plaintiff's house so the Wurtzes could have a private room. With the exception of brief periods of hospitalization, both testators lived with plaintiff until their deaths. Bessie died on August 3, 1976; Harold died on November 20, 1976.

On May 26, 1976, plaintiff went to a bank with the testators, who then placed their personal papers, including the joint will, in a safety deposit box. Between that date and Bessie's death, only Harold opened the box, and he did so on several occasions. When the box was first opened after Bessie's death for the inventory, the will was not there. It was never found.

On August 18, approximately two weeks after Bessie died, Harold executed another will, which expressly revoked all prior wills and codicils. In the new will he bequeathed $2,000 to Helen Jones (the same as in the joint will), $5,000 to plaintiff and her husband, $400 to Fred Wurtz and the residue to Heston and Mary Walsh. After Harold's death, the August 18 will was admitted to probate. Mary and Heston Walsh were co-representatives under that will.

In January, 1977, plaintiff initiated this suit, seeking specific performance of the joint will. After trial, a decree was entered for plaintiff, granting the relief requested. Defendants appeal.

The basic legal principles applicable to joint and mutual wills and agreements to make such wills may be summarized. A joint will is a unitary testamentary instrument that constitutes the separate wills of each of the testators. Florey v. Meeker, 194 Or. 257, 240 P.2d 1177 (1952). Even if such wills are based on a contract under which each party's promise to make a particular disposition is exchanged for a similar promise by the other, each retains the right to revoke his Will, before Or after the death of the other. Williams v. Chastain, 221 Or. 69, 350 P.2d 430 (1960); Florey v. Meeker, supra. However, a party who revokes a joint will remains bound by the contract. Williams v. Chastain, supra; Florey v. Meeker, supra. If a suit is brought by a third party beneficiary of the contract, the justiciable question is whether the revocation constituted a breach of the contract. Irwin v. First Nat'l Bank, 212 Or. 534, 321 P.2d 299 (1958); Florey v. Meeker, supra. The general principles of law governing contracts for mutual wills are the same as those that apply to contracts in general (Florey v. Meeker, supra ), and the will based on the contract is admissible as evidence of the terms of the contract.

Defendants raise two issues. First, they argue that Harold was not obligated to comply with the contract because Bessie's bequest of one-half of her residual estate to Mary Walsh, who was not a blood relative of Harold, constituted a material breach. As evidence of the purported requirement that each of the residual beneficiaries be a blood relative of Bessie or Harold, defendants point to paragraph six of the joint will, quoted above. That argument is not convincing. The agreement between the testators concerning the residual beneficiaries was clearly that which is reflected in paragraph three of the will which they jointly executed. Both agreed that "Mary Walsh, niece of Harold Wurtz" was to receive one-half of the residual estate of the survivor. That intention is also supported by the testimony of the attorney who drew the will after consulting with Bessie:

"Yes, she told me that they had an agreement that after the death of one, all the property was to go 50 percent to his heir and 50 percent to her heir, That is, her niece and his niece, and she wanted the Will prepared in accordance with that agreement." (Emphasis supplied.)

Defendants failed to establish any breach of the contract by Bessie.

Defendants next argue that prior to Bessie's death Harold revoked his will and that such a revocation was not in violation of the agreement. They contend that paragraph six of the will should be interpreted as permitting revocation by either party while both were living. To establish a revocation prior to Bessie's death, defendants rely on...