Holman v. Lutz

• Decision Date: 19 November 1929
• Citation: 132 Or. 185,282 P. 241
• Parties: HOLMAN ET AL. v. LUTZ ET AL. [*]
• Court: Oregon Supreme Court

282 P. 241

132 Or. 185

HOLMAN ET AL. v. LUTZ ET AL.^[*]

Supreme Court of Oregon

November 19, 1929

In Bank.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Suit by Howard B. Holman and others against Iris Whitney Lutz and Oliver E. Lutz, individually and as executrix and executor of the estate of Julia Holman, deceased, Iris Whitney Lutztrustee for Robert Miller Ackley, familiarly known as Robert Ackley Holman, and others.From a decree for plaintiffsdefendants appeal.Reversed and dismissed.

This is a suit commenced by the plaintiffs for the purpose of enforcing the specific performance of an alleged contract.It is alleged that, on the 5th day of December, 1914, and for a long time prior thereto, Edward Holman and Julia Holman were husband and wife, and that they continued to be husband and wife until the 3d day of December, 1920, when Edward Holman died; that Walter Jervis Holman and Guy Edward Holman were sons of Edward Holman by a former marriage, and that at the time of the making of the said contract to make mutual wills (which will be hereinafter referred to) by Edward and Julia Holman, and at the time of the execution of said mutual wills on the 5th day of December, 1912, Walter Jervis Holman and Guy Edward Holman were the only living children of Edward Holman, and, together with his wife, Julia Holman, his sole heirs at law; that Guy Edward Holman died on the 10th day of June, 1914, leaving as his sole heirs at law his widow and his son, Edward Guy Holman, a defendant herein; that Walter Jervis Holman died on the 23d day of June, 1921, leaving as his sole heirs at law his widow, now Mabel M. Osborn, and his four sons, namely, Walter Edward Holman, Herbert Merle Holman, Howard Bird Holman, and Kenneth William Holman.

It is further alleged that on and prior to the 5th day of December 1912, and at the time said contract to make mutual wills was entered into by Edward Holman and Julia Holman, and at the time of the execution of said wills, they, and each of them owned a large amount of real and personal property situate in the county of Multnomah and state of Oregon, and that all of the property owned by Julia Holman had been given to her during her married life by her husband, Edward Holman; that while so the owners of said property, Edward Holman and Julia Holman made and executed each with the other a contract, by the terms of which Edward Holman promised and agreed with Julia Holman that he would make and execute a will whereby he would devise and bequeath to her all the property, of every kind, which he might own or have an interest in at the time of his death, subject to a legacy of $5 in favor of Hannah Cook, and a further legacy of $5 in favor of Iris Whitney Lutz, and would further provide in and by said will that, in the event that she(Julia Holman) should die before him, all of the property, of every kind, which he might own or have an interest in at the time of his death, would be by him devised and bequeathed to the parties designated in, and in the amounts and manner as set forth in, the said will of Edward Holman; that Julia Holman, by the terms of the said contract so entered into, and in consideration of the making of the contract by Edward Holman and of his promise to her to make such will as aforesaid, promised to and with Edward Holman that she would make and execute a will whereby she would devise and bequeath to him all the property, of every kind, which she might own or have an interest in at the time of her death, subject to legacies of $5 each in favor of Hannah Cook, Iris Whitney Lutz, Frank Turman, and William Riley Reddick, and that she would further provide in said will that, in the event that Edward Holman should die before her, all of the property, of every kind, which she might own or have an interest in at the time of her death, would be by her devised and bequeathed to the parties designated in, and in the amounts and manner as set forth in, the said will of Julia Holman, a copy of which is attached to plaintiffs' complaint.

It is further alleged that thereafter, in pursuance of and in compliance with the said agreement, Edward Holman and Julia Holman, on the 5th day of December, 1912, in the presence of each other, regularly executed their said wills as set out below:

"In The Name of God, Amen.Know all men, that I, Edward Holman, of the city of Portland, in the state of Oregon, at the age of 62 years, being of sound and disposing mind and memory and not acting under duress, menace, fraud or undue influence of any person whomsoever, do make, publish and declare this my last Will and Testament, in manner and form following, to wit:

"First.It is my will, and I do order, that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be done after my decease.

"Second.I give and bequeath unto my wife's sister, Hannah Cook, the sum of Five ($5.00) Dollars.

"Third.I give and bequeath to my wife's niece, Iris Whitney Lutz, the sum of Five ($5.00) Dollars.

"Fourth.I give and bequeath to my wife, Julia Holman, all the rest, residue and remainder of my property, real, personal and mixed, of every name or nature, and wheresoever situate, to her own use and benefit.

"Fifth.In case my said wife shall not survive me or we should meet death in a common calamity, then it is my will that all of my said property and estate so as aforesaid bequeathed to my said wife shall go and in such case the same is hereby given and bequeathed to the Security Savings and Trust Company of Portland, Oregon, in trust nevertheless, to the following uses and purposes, that is to say, that it shall take, hold and manage the same, and invest and reinvest the same and the proceeds thereof, and out of the net income and profits:

"A.Pay to my son, Guy Edward Holman, a monthly allowance of Two Hundred ($200.00) Dollars per month so long as he may live during the continuance of this trust.

"B.Pay to my wife's sister, Hannah Cook, and my wife's niece, Iris Whitney Lutz, each a monthly allowance of Fifty ($50.00) Dollars per month as long as they each shall live during the continuance of this trust.

"C.To at once upon receiving the same turn over and deliver all my jewelry, household furniture, statuary and books to my wife's sister, Hannah Clark, and my wife's niece, Iris Whitney Lutz, or the survivor of them, to their or to her own use and benefit, to be divided between themselves if both living, share and share alike.

"D.At the expiration of twenty-one (21) years from the time of my death, to distribute all of said property remaining in its possession and all accumulated rents, issues and profits to the said Guy Edward Holman, and to Walter Edward Holman, Herbert Merle Holman, Howard Bird Holman, Kenneth William Holman and Edward Guy Holman, my grandchildren, and to my son, Walter Gervis Holman, share and share alike, being one-seventh to each.

"E.It is my will and I direct that said trustee shall, as one of the expenses of executing said trust, pay over to my brother, Robert Holman, the sum of Fifty ($50.00) Dollars per month during his natural life.

"F.In case of the death of any of the beneficiaries of said trust before said final distribution, the share of said deceased beneficiary shall, upon said final distribution, be distributed pro rata among the surviving beneficiaries.

"G.Full, clear and accurate books of account of said trust shall be at all times kept by said trustee, which shall be open at all reasonable times to the inspection of the beneficiaries of the same, or their duly accredited agents or employees.

"And lastly, I nominate, constitute and appoint my said wife, Julia Holman, to be the executrix of this, my last Will, hereby revoking all other wills, legacies and bequests by me heretofore made, and declare this and no other to be my last Will and Testament, and request and direct that she be not required to give bonds.

"In witness whereof, I have hereunto set my hand, this 5th day of December, in the year of our Lord One Thousand Nine Hundred and Twelve.The words and figures 'twenty-one (21)' put in before signing.

"[Signed]Edward Holman.[ Seal.]

"The above instrument was at the date thereof signed, sealed, published and declared by the said Edward Holman as and for his last will and testament, in the presence of us who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto.

"[Signed]Katherine O'Neil,

"Residing at Portland, Oregon.

"[Signed] Thos. N. Strong,

"Residing at Portland, Oregon."

"In The Name of God, Amen.Know all men, that I, Julia Holman, of the city of Portland, in the state of Oregon, of the age of 49 years, being of sound and disposing mind and memory, and not acting under duress, menace, fraud or undue influence of any person whomsoever, do make, publish and declare this my last Will and Testament, in manner and form following, to wit:

"First.It is my will, and I do order, that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be done after my decease.

"Second.I give and bequeath unto my sister, Hannah Cook, the sum of Five ($5.00) Dollars.

"Third.I give and bequeath to my niece, Iris Whitney Lutz, the sum of ($5.00) Dollars.

"Fourth.I give and bequeath to my half brother, Frank Turman, the sum of Five ($5.00) Dollars.

"Fifth.I give and bequeath to my half brother, William Riley Reddick, the sum of Five ($5.00) Dollars.

"Sixth.I give and bequeath to my husband, Edward Holman, all the rest, residue and remainder of my property, real, personal and mixed, of every name and nature, and wheresoever situate to his own use and benefit.

"Seventh.In case my said...