Irwin v. First Nat. Bank of Portland (Or.)

Decision Date29 January 1958
Citation321 P.2d 299,212 Or. 534
PartiesNatheel IRWIN, Respondent, v. FIRST NATIONAL BANK OF PORTLAND (OREGON), as administrator of the estate of Frank C. Pate, deceased, Respondent. James A. Pate, as administrator of the estate of James Pate, deceased, and James A. Pate, individually, and Ida Pate, wife of said James Pate, deceased; Emma Wagoner and Amos Wagoner, her husband; Minnie Morris and L. Morris, her husband; Naomi Schissler and Irving Schissler, her husband; Naomi Beebe, a widow, and Mabel Beauchamp Pate, a widow, Appellants.
CourtOregon Supreme Court

W. C. Winslow, Salem, argued the cause for appellants. With him on the brief were John Wm. Stortz and John H. Carson, Salem.

Laurence L. Morley and M. Maurice Orona, Lebanon, Or., argued the cause for respondent Natheel Irwin. On the brief were Morley & Thomas, Lebanon, Or., and Weatherford & Thompson, Albany.


This is a suit for specific performance of a contract to make a will. The plaintiff is Natheel Irwin, the stepdaughter of the decedent, Frank C. Pate. The defendants include the widow of said decedent, the First National Bank of Portland (Oregon), as administrator of his estate, and three sisters and the children of two deceased brothers of said Frank C. Pate, who are the heirs at law of said decedent. The widow, who because of an antenuptial agreement claims no interest in the estate, did not appear and an order of default was entered against her. From a decree in favor of plaintiff, the said heirs of Frank C. Pate, who will be referred to herein as the defendants, appeal.

We will briefly relate the facts which resulted in this controversy. The decedent, Frank C. Pate, and Belle Pate were married in 1911 and thereafter lived in Albany. Belle had been previously married and had a daughter, Natheel, then 10 years of age, who was raised in the Pate home until her marriage in 1923. Frank Pate, who had no children of his own, apparently always treated Natheel with fatherly affection as if she were his own daughter.

Within a few years after his marriage, Frank Pate acquired a creamery in Albany which he operated until it was sold in 1943. His wife, Belle, worked in the office of the creamery during most of this period. In a letter written after Belle's death, Frank stated that his wife 'had worked in the business at all times the business was operated' and that 'we actually operated as a partnership.'

In addition to helping her husband run the creamery Belle made other contributions to the family estate. In about March, 1940, Belle received about $17,300 from the estate of her sister. $10,000 of this sum was invested in securities registered in the name of Belle and her daughter, Natheel, as joint tenants with the right of survivorship. Although these securities were held by Natheel, the income therefrom, averaging about $60 per month, was paid to Belle during her lifetime. Of the remainder of this inheritance, $2,000 was paid by Belle to her brother and the balance of about $5,300 was added to the funds jointly held by Belle and her husband or used to pay the balance of a debt owing by them. The income received by Belle from the securities apparently was also used to supplement the Pate income. There is evidence of other contributions by Belle to the family estate but since that evidence is not definite and in any event does not affect the disposition of this case, it is not necessary to discuss it further.

Title to the real property on which the creamery was located had been held by Frank, Pate, but in April, 1940, Frank conveyed a one-half interest in this property to his wife by a deed which expressed his intention to create an estate in entirety. It will be noted that this conveyance was made at about the time Belle contributed the $5,300 to the family funds.

In October, 1943, the Pates sold their creamery, including the real property, for $21,500 under a contract providing for a down-payment of $2,000 and the balance to be paid in monthly installments of $100 with interest, also payable monthly. After the sale of the creamery the Pates planned a trip to California to visit Natheel and her family, but before leaving Albany, executed the wills involved in this case.

It is clearly established that the Pates told their attorney that they had agreed that the survivor should have the use and benefit of all their property during his or her lifetime and that upon the death of the survivor, all the property then remaining should pass to Natheel. Their attorney at first intended to draw a separate instrument to evidence this agreement. After further consideration, he decided that a separate instrument was unnecessary and that it would be sufficient to refer to the agreement by appropriate recitals in the wills. The two wills were dictated by the attorney in the presence of both Mr. and Mrs. Pate and were executed the following day, December 1, 1949, at the bank in Albany.

Belle Pate's will contained the following provisions:

'Second: That in as much as all real property which I now own or have an interest in is owned by husband Frank C. Pate and myself as tenants by the entirety and each of us desires to provide for the desposition (sic) of our property and have this date executed, reciprocal identical wills.

'Third: I therefore give, devise and bequeath unto my said husband, Frank C. Pate, for his natural life all real and personal property of every kind and nature whatsoever and wheresoever situated, to use and manage the same during his life time and upon his death I give, devise and bequeath the remainder thereof unto my daughter Natheel Irwin. * * *'

The will of Frank C. Pate contained the following provisions:

'Second: That whereas my wife, Belle Pate has this date executed a reciprocal will and whereas the real property belonging to me and in which I have an interest is vested in myself and my said wife as tenants by the entirety and whereas our personal property in which I have an interest is held by us with rights of survivorship and whereas my said wife and I have agreed as to the manner in which our property and the property of either of us should be disposed of, I therefore in performance of this agreement between my said wife and myself, give, devise, and bequeath unto my said wife, Belle Pate, during her natural life, all real and personal property of which I die, seise, and possessed as stated, giving and granting unto my said wife the power to manage and control the same so long as she may live as though the same were her property and upon the death of my said wife I give, devise, and bequeath the remainder thereof unto my stepdaughter, Natheel Irwin. * * *'

Belle Pate died in April, 1944. Her will was admitted to probate in Linn county on May 16, 1944, and Frank Pate was appointed executor of her estate. The probate was completed and the estate closed on April 10, 1946.

On November 16, 1946, Frank Pate married Mabel Beauchamp. As stated above, an antenuptial agreement was executed by these parties whereby each waived all right in the estate of the other. In accord with that agreement, the widow has asserted no claim or interest in the estate of Frank Pate.

This subsequent marriage resulted in the revocation of the will of Frank Pate by operation of law 1 and he neither republished the old will nor made a new one. Frank Pate died intestate on September 18, 1952. His estate was admitted to probate in Linn county and defendant bank was appointed administrator of the estate. Thereafter plaintiff filed this suit for specific performance of the agreement between Frank Pate and her mother and for a decree requiring the bank to turn over to the plaintiff the entire balance of the estate of Frank Pate after paying the costs of administration.

Before considering the contentions of the defendants, we will briefly state the applicable rules of law. From Ankeny v. Lieuallen, 169 Or. 206, 218, 113 P.2d 1113, 1117, 127 P.2d 735, we take the following:

'The doctrine that where, pursuant to a contract, a husband and wife, or any two persons, make mutual or reciprocal wills, each making a testamentary disposition in favor of the other, the making of one being a consideration for the making of the other, the wills are valid and, unless revoked during their joint lives, the will of the survivor becomes irrevocable after the death of the other if the survivor takes advantage of the provisions made by the other, and that the courts will not permit the survivor, if the rights of any third party would be injuriously affected thereby, to violate the mutual agreement, is well established by the following decisions of this court: Stevens v. Myers, 91 Or. 114, 177 P. 37, 2 A.L.R. 1155; Schramm v. Burkhart, 137 Or. 208, 2 P.2d 14; Tate v. Emery, 139 Or. 214, 9 P.2d 136; Taylor v. Wait, 140 Or. 680, 14 P.2d 283; Lay v. Proctor, 147 Or. 545, 34 P.2d 331; Cooke v. King, 154 Or. 621, 61 P.2d 429, 62 P.2d 20, 107 A.L.R. 881.'

The above quotation states the rule accurately except for that portion which says that 'the will of the survivor becomes irrevocable,' which portion was probably not meant literally. This court has frequently held that a will may be revoked by the survivor even though made in compliance with a contract. But such revocation will not impair or circumvent the enforcement of the contract. This distinction was clearly pointed out in the early case of In re Burke's Estate, 66 Or. 252, 256, 134 P. 11, and has been restated in the recent case of Florey v. Meeker, 194 Or. 257, 277, 240 P.2d 1177, 1186, as follows:

'It is worthy of note that the law is well established in this jurisdiction that a testator to a joint will may make a different testamentary disposition at any time and that this right applies notwithstanding that the joint and mutual will was...

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10 cases
  • Schaad v. Lorenz
    • United States
    • Oregon Court of Appeals
    • July 11, 1984
    ...technically free to revoke her 1946 will, which she did, she was not free to repudiate the underlying contract. Irwin v. First Nat'l Bank, 212 Or. 534, 540, 321 P.2d 299 (1958). The result is admittedly peculiar in that A.M., who provided for Patricia's mother, Caroline McCormack, did not p......
  • Willbanks v. Goodwin
    • United States
    • Oregon Supreme Court
    • December 17, 1985
    ...Schramm v. Burkhart, supra, 137 Or. at 215, 2 P.2d 14; Taylor v. Wait, supra, 140 Or. at 684-85, 14 P.2d 283; Irwin v. First Nat'l Bank, 212 Or. 534, 541, 321 P.2d 299 (1958). Parties contracting to make wills need not also expressly contract not to revoke those wills, to make the contractu......
  • Willbanks v. Goodwin
    • United States
    • Oregon Court of Appeals
    • December 7, 1984
    ...66 Or. 252 (134 P. 11). This rule of law is so well settled that further citation is unnecessary." See also Irwin v. First Nat'l Bank, 212 Or. 534, 541, 321 P.2d 299 (1958); Taylor v. Wait, 140 Or. 680, 684-85, 14 P.2d 283 (1932); Woelke v. Calfee, 45 Or.App. 459, 462-63, 608 P.2d 606 Orego......
  • Cook v. Walsh
    • United States
    • Oregon Court of Appeals
    • March 19, 1979
    ...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......
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