DeLaMater v. DeLaMater

Decision Date11 July 1984
PartiesGlen DeLaMATER, Clina Gordon, Viola Mitchell, and Lois Buonopane, Appellants, v. Abigail DeLaMATER, Thelma Clifton, and Zelma L. Hodson, Respondents. E81-2289; CA A29022.
CourtOregon Court of Appeals

Randolph J. Stevens, Roseburg, argued cause for appellants. With him on briefs was Cegavske & Seitz, Roseburg.

Gordon G. Carlson, Roseburg, argued cause and filed the brief for respondents.


JOSEPH, Chief Judge.

In 1955 Abigail and Clyde DeLaMater, husband and wife, executed a joint and mutual will. The couple had no children from their marriage, but each had four children from previous marriages. Clyde died in 1965. The joint will was never probated. 1 In 1977, Abigail executed a second will, which would substantially change the distribution from that in the joint will. There are no provisions for Clyde's children, plaintiffs here, who brought this declaratory judgment action to determine their rights under the joint will. They contend that the will was based on a contract to make a will and that Abigail is bound by that contract. The trial court found that no contract exists. We affirm.

The Oregon law of joint wills was summarized in Cook v. Walsh, 39 Or.App. 357, 591 P.2d 1201 (1979):

"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." 39 Or.App. at 360, 591 P.2d 1201.

The issue is whether plaintiffs proved the existence of an underlying contract by clear and convincing evidence. American Nat'l Red Cross v. Wilson, 274 Or. 237, 545 P.2d 883 (1976); Taylor v. Wait, 140 Or. 680, 684, 14 P.2d 283 (1932). A contract to make a will is not established merely by the existence of a joint will. American Nat'l Red Cross v. Wilson, supra, 274 Or. at 240, 545 P.2d 883. There was no express agreement to execute a will either in the will or in a separate document. Therefore, evidence of a contract must be found from the will itself and from the circumstances surrounding its execution. Holman, et al. v. Lutz, et al., 132 Or. 185, 208-09, 282 P. 241, 284 P. 825 (1930), overruled on other grounds, State ex rel Madden v. Crawford, 207 Or. 76, 295 P.2d 174 (1956).

Obviously, the joint will was executed by both testators at the same time, and they were aware of the mutual testamentary provisions. Those facts are not sufficient to prove a contract between the parties. See American Nat'l Red Cross v. Wilson, supra, 274 Or. at 240, 545 P.2d 883. Paragraph 2 of the will states:

"I, CLYDE ARTHUR DE LA MATER, and I, ABIGAIL DE LA MATER, do hereby bequeath and devise each to the other all real and personal property owned by either of us and wheresoever situated at the time of the death of either of us, the surviving testator to become beneficiary under this will to all real and personal property of the deceased testator, and to serve as executor or executrix, without bond, for the other remaining heirs."

The will then provides, in the event of the simultaneous death of the testators or upon the death of the survivor: (1) the children of each are each to choose a "keepsake" from the personal property of his or her parent; (2) a debt owed to Glen DeLaMater, a son of Clyde, is to be paid; and (3) the remaining property "owned by either of us" is to be divided equally among the children of both testators. Provisions are also made for the death of any of the children before the death of the testators or the survivor.

Plaintiffs argue that the will as a whole, rather than specific language in the document, is evidence of a contract. They contend that Clyde died believing that the provisions of the will would be carried out and that Abigail should be bound, because she benefited under the will. They rely on Schramm v. Burkhart, 137 Or. 208, 2 P.2d 14 (1931), where the surviving spouse was to have "full and complete possession" of the testator's estate. The court found that "neither testator made an absolute gift of property to the survivor." 137 Or. at 211, 2 P.2d 14. The limitation placed on the testamentary estate, as well as oral declarations made by the testators, was held to prove the existence of a contract.

Here, however, the will, although inartfully drawn, gives an unrestricted estate to the surviving spouse. The language that the survivor spouse is "to serve as executor or executrix, without bond, for the other remaining heirs" does not create a trust, nor does it restrict the survivor's use or disposition of the property. The provision that remaining property should go to the children also does not in terms limit the ability of the survivor to deal with the property in any way.

Case law gives no absolute guidelines for what is required to show the existence of a contract to make a will. 2

"[T]he execution of simultaneous mutual and reciprocal wills, their construction and legal effect, is a subject about which there has been much judicial utterance. However, an examination of these precedents show * * * that each case is decided upon the peculiar facts therein presented." Holman, et al, v. Lutz, et al, supra, 132 Or. at 203, 2 P.2d 14. (Emphasis supplied.)

However, what is clear is that, unless a separate express contract exists or there is contractual language in the will, courts will not infer a contract without strong corroborating evidence. Plaintiffs urge that the testimony of Abigail provides that corroboration.

The trial court erred in refusing to consider the testimony of the testatrix, who was 88 at the time of trial. Holman, et al., v. Lutz, et al., supra, 132 Or. at 210, 2 P.2d 14. However, our review is de novo, and we consider her testimony offered under the rule:

"Q Mrs. DeLaMater, was [the will] the complete agreement between you and your former husband regarding disposition of your property?

"A Yes.

" * * *

"Q Did you intend to provide for both your children and his children through this document?

"A In what way do you mean?

"Q As I read the document, there are provisions made for your children and there are provisions made for his children. My question is, did you intend that this document would give them or provide for them from your estate?

"A (Pause)

"THE COURT: Do you understand the question?

"THE WITNESS: No, I don't.

"THE COURT: All right. Ask it again.

"Q I will ask it a different way, Mrs. DeLaMater. Both you and Mr. DeLaMater had children from previous marriages?

"A That's correct.

"Q You were concerned that the children have personal items from each of you separately?

"A Keepsakes or what?

"Q Keepsakes and possessions?

"A Yes.

"Q So it was your intent in this will to make sure that the children of Mr. DeLaMater and the children of you would be provided for from your individual keepsakes and possessions?

"A Yes."

We do not agree that that testimony proves that, when she signed the 1955 will Abigail and her husband were " 'near to the point where arms length promises are exchanged, consideration exists, and a contract emerges.' " See American Nat'l Red Cross v. Wilson, supra, 274 Or. at 240, 545 P.2d 883, quoting 1 Page on Wills 554 § 11.1 (Bowe-Parker revision 1960). As corroborating evidence, it is weaker than that which we rejected in Parker v. Richards, 43 Or.App. 455, 602 P.2d 1154 (1979), rev. den. 288 Or. 527 (1980), where the testator and his wife had executed mutual wills. The testator devised his property to his wife "for her full and free use, occupation and enjoyment as long as she shall live" and, at her death, one-half of the remaining...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT