Hunter's Estate, Matter of

• Decision Date: 18 December 1978
• Docket Number: No. P-48-76,B,No. 944,944,P-48-76
• Citation: 588 P.2d 617,37 Or.App. 545
• Parties: In the Matter of the ESTATE of George Ian HUNTER, Deceased. Louise E. HUNTER, Petitioner, Respondent-Cross-Appellant, v. Clifford CRAFT, Personal Representative and Proponent, Appellant-Cross-Respondent, Clinton R. Hunter, Contestant, Respondent-Cross-Appellant, Joan C. Hunter Greene, Carol I. Hunter, Lucille O'Brien, Shriner's Hospital for Crippled Children, Jackson County Chapter of the American Red Cross, Ashland Lodgeenevolent and Protective Order of Elks of Ashland, Oregon, Lawrence L. Clark, Mrs. Alfred (Rose) Greene or Alfred Greene, Montague Hunter, and B. J. Holland, Heirs and Devisees. ; CA 9254.
• Court: Oregon Court of Appeals

Page 617

588 P.2d 617

37 Or.App. 545

In the Matter of the ESTATE of George Ian HUNTER, Deceased.

Louise E. HUNTER, Petitioner, Respondent-Cross-Appellant, v. Clifford CRAFT, Personal Representative and Proponent,

Appellant-Cross-Respondent,

Clinton R. Hunter, Contestant, Respondent-Cross-Appellant,

Joan C. Hunter Greene, Carol I. Hunter, Lucille O'Brien,

Shriner's Hospital for Crippled Children, Jackson County

Chapter of the American Red Cross, Ashland Lodge No. 944,

Benevolent and Protective Order of Elks of Ashland, Oregon,

Lawrence L. Clark, Mrs. Alfred (Rose) Greene or Alfred

Greene, Montague Hunter, and B. J. Holland, Heirs and Devisees.

No. P-48-76; CA 9254.

Court of Appeals of Oregon.

Argued and Submitted July 25, 1978.

Decided Dec. 18, 1978.

Thomas C. Howser, Ashland, argued the cause for appellant-cross-respondent. With him on briefs, were Ronald K. Cue and Cottle, Howser & Hampton, Ashland.

Joel B. Reeder, Medford, argued the cause and filed briefs, for respondent-cross-appellant Louise E. Hunter.

Karen C. Allan, Medford, argued the cause for respondent-cross-appellant Clinton R. Hunter. With her on brief, was Frohnmayer, Deatherage, Foster & Purdy, Medford.

Before SCHWAB, C. J., and LEE, RICHARDSON and JOSEPH, JJ.

RICHARDSON, Judge.

This suit involves a will contest in which Clifford Craft, as executor, petitioned for probate of the will of decedent George Hunter. Louise Moon Hunter, decedent's widow, petitioned to have the will declared revoked by operation of ORS 112.305 and a distribution of the estate to her as the sole intestate heir. Clinton Hunter filed a petition asserting the will was revoked by operation of ORS 112.305 and that he was the son of decedent and entitled to share in the intestate distribution.

The court decreed that the will was revoked, that the decedent died intestate and that Clinton Hunter was not the son of decedent.

The executor appeals refusal of the court to admit the will to probate. Louise Moon Hunter cross-appeals the award of fees and costs to the executor. Clinton Hunter cross-appeals the denial of his petition to share in distribution of the estate.

Decedent died an elderly man, leaving the contested will and a substantial estate. He married his first wife in 1927, after they had lived together for several years. Clinton Hunter was born to decedent's first wife in 1916, prior to their marriage. The Massachusetts birth certificate listed the mother by her maiden name and a person other than decedent as the father. Decedent's first wife died in 1971, and in the fall of 1972 Louise Moon moved into decedent's house as a housekeeper, companion and nurse.

On April 17, 1975, decedent executed a deed and bill of sale conveying his house and its contents to Louise Moon with a covenant, written into the deed, that she agreed to care for him for the remainder of his life. The deed was placed in escrow with instructions for the escrow agent to record the deed upon decedent's death, provided Louise Moon had fulfilled the terms of the covenant. Decedent executed the contested will on June 6, 1975. Decedent and Louise Moon were married on December 2, 1975. Decedent died on March 16, 1976.

The executor's first assignment of error asserts that the deed held in escrow with a covenant for future services was a written contract that made provision for the spouse and prevented revocation of decedent's last will.

ORS 112.305 states:

"A will is revoked by the subsequent marriage of the testator if the testator is survived by his spouse, unless:

"(1) The will evidences an intent that it not be revoked by the subsequent marriage or was drafted under circumstances establishing that it was in contemplation of the marriage; or

"(2) The testator and his spouse entered into a written contract before the marriage that either makes provision for the spouse or provides that the spouse is to have no rights in the estate of the testator."

For the purposes of discussion we assume that the deed held in escrow containing the covenant satisfies the statutory requisite of a written contract.

The evident purpose behind the revocation statute is to protect a spouse from accidental disinheritance by a will executed prior to marriage. The statute contemplates that in some instances a testator may wish a limitation of spousal inheritance. In light of the general legislative purpose, the exceptions to revocation by marriage must be read narrowly.

In reaching its conclusion, the trial court stated that any contract within the purview of ORS 112.305(2), of necessity, must be between parties contemplating marriage. Although subsection (1), which refers to the will itself, does include the language "in contemplation of the marriage," and subsection (2) does not, we conclude that the latter implies such contemplation. The statute simply would not make sense otherwise if the language "makes provision for the spouse," were to require anything less than an anticipated marriage to the other party at the time of the contract. To illustrate further, the executor's argument carried to its logical end would have any contract for services between parties who were not considering marriage but who later became espoused, to be within ORS 112.305(2). That surely was not the intent of the legislature.

Further, the second clause of subsection (2) manifestly relates to parties anticipating marriage, for it is impossible to imagine a situation where two persons who are not anticipating marriage, would enter into an agreement in which one of them renounced conjugal rights in the other's estate. Similarly, this rationale applies to a contract for provision for a spouse because there would be no duty otherwise to provide for one unrelated to the testator.

Finally, the statute demands that the provision be for the spouse. To hold that a will is revoked on the mere basis of a contract between parties who later become husband and wife, without regard to either's intent at the time of the contract, would do nothing to further, and in fact would work to negate, the policy underlying the statute.

We read the language of ORS 112.305(2) implicitly to require that there have been a contemplation of marriage at the time the contract was entered into.

Applying this interpretation of the statute to the facts of this case, we find that the deed to Louise Moon Hunter from George I. Hunter was executed and placed in escrow before the parties to it entertained any serious thoughts of marriage. The record indicates that although marriage had been discussed prior to executing the deed, it was only in jest. Decedent had made a proposal of marriage to a previous housekeeper. Further, there was nothing said to the attorney who prepared the deed regarding any possible marriage, and the first time any serious intent to marry became apparent was approximately six months after the deed was executed. Finally, the terms of the escrow and the covenant in the deed show that the essence of that agreement was an exchange for services and a guarantee of future care, rather than any provision for an intended spouse.

We hold that, at the time of the deposit of the deed in escrow, there was no contemplation of marriage between Louise Moon and decedent. Consequently, the deed does not satisfy the requirements of ORS 112.305(2). Since Louise Moon Hunter, the spouse of decedent, survived him, the will validly executed before the marriage was revoked by operation of law.

The executor next asserts, if the court finds the will was revoked by decedent's marriage to Louise Moon, that she exerted undue influence to prevent execution of a new will. The essence of this argument supposes that Louise Moon had a conscious objective to obtain a large share of decedent's estate. In carrying out that objective she first married him, then by a combination of factors, prevented him from executing a will to dispose of his estate as originally intended. The allegation of undue influence is not sustained by the evidence. The trial court in its memorandum opinion exhaustively reviewed the facts it determined were proven and concluded there was a lack of undue influence. Our review of the record leads us to the same conclusion.

In his third claim of error the executor alleges that decedent was incompetent at the time of his marriage to Louise Moon and the marriage is voidable under ORS 107.015. The trial court ruled the issue could not be raised by the executor in this proceeding.

In Dibble v. Meyer, 203 Or. 541, 278 P.2d 901, 280 P.2d 765 (1955), the Supreme Court held that a suit to annul a marriage on the ground of incompetence was abated on the death of the person claimed to be under the disability. A marriage contracted when either party is incompetent, or when consent to marry is obtained by fraud, is voidable, not void Ab initio. ORS 106.030. The death of a party to a marriage terminates the marriage and a suit for annulment does not survive the death. Dibble v. Meyer, supra.

The executor argues that Dibble v. Meyer, supra, is no longer applicable because the statute applied was repealed in 1971. ¹ ORS 107.015 adopted the substance of the statutes applied in Dibble but deleted the requirement that the suit be brought by the party laboring under the disability. The executor argues that the change in the statute allows any person to challenge the marriage. On the contrary, the amended statute simply allows either party to seek annulment of the marriage on the ground of incompetence or fraud, not just the party laboring under the disability. ORS 107.015 provides for annulment of a voidable marriage. An annulment proceeding must be initiated by one of the parties to the marriage. In addition to the validity of the marriage, a court in an annulment proceeding, must determine other applicable issues such as child custody, child and spouse support and property division. There is little practical difference in these respects between a suit for annulment...