Kelley v. Devin

• Decision Date: 20 May 1913
• Citation: 132 P. 535,65 Or. 211
• Parties: KELLEY v. DEVIN et al.
• Court: Oregon Supreme Court

132 P. 535

65 Or. 211

KELLEY v. DEVIN et al.

Supreme Court of Oregon

May 20, 1913

Appeal from Circuit Court, Morrow County; D.R. Parker, Judge.

Action by Bruce B. Kelley against S.P. Devin, surviving executor of Norman A. Kelley, deceased, and others. From a decree dismissing the suit plaintiff appeals. Reversed, and decree entered for plaintiff.

Norman A. Kelley died in Morrow county, Or., May 28, 1908, leaving surviving him Emily A. Kelley, his widow, and the plaintiff their only child. In substance, the complaint states that about April 23, 1898, Norman A. Kelley was the owner of considerable land and personal property; that up to that time the plaintiff had been working out part of the time and remaining at home with his father during the remainder, and about then he informed his father that he intended to go into Malheur county and there engage in business for himself; that thereupon the father proposed to the son "that if he (the plaintiff) would remain at home until the death of said Norman A. Kelley and assist in managing and running the farm and sheep and cattle that he would make him (the plaintiff) a partner in said business, and that upon the death of said deceased he would leave, will, bequeath, and devise unto the plaintiff an undivided half of all the property, both real and personal, of every kind and nature that might then belong to said deceased." The plaintiff alleges, in effect that he then and there accepted the proposition and agreed to and with his father that he would comply with the conditions of the proposition, and went into possession of the property then on hand and remained with the deceased until his death above mentioned and generally performed all the conditions to be performed by the plaintiff. During the ten years mentioned immediately prior to his death, the father accumulated more property both in land and in personalty. It is then charged that on March 28, 1908, the deceased disregarded the contract mentioned and, in violation thereof and in an attempt to defraud the plaintiff, neglected to make the will as provided, and on the contrary made a will in which, after bequeathing the plaintiff the sum of $50, he gave the whole property to two trustees, S.P. Devin and J.M. Hager directing in general that his debts and plaintiff's legacy be paid; that out of the proceeds of sale of the personal property and the rents of the real property his widow should be comfortably supported; that after her death the whole property be sold by the trustees; and that, after paying three brothers $5 each, the remainder was to be divided between a fourth brother and two sisters in equal shares. Hager died leaving S.P. Devin as sole trustee and executor of this will. The executors, the widow, and all the legatees under the will were made parties defendant, and the plaintiff prayed that the contract between him and his father be specifically performed and the plaintiff be decreed to be the owner of an undivided half interest in and to all the real and personal property of which the father died seised and for general relief. The ownership of the property by the decedent at the time of his death, his relationship to the plaintiff and to the widow are admitted, as well as the making of the will quoted in the complaint; but the alleged contract between the father and son is expressly denied by the answer of the trustees, executors, and the residuary legatees, who alone appeared in the defense. The answering defendants also allege: "That, during the entire period between the date of the alleged contract set forth in plaintiff's complaint and the decease of Norman A Kelley, plaintiff spent all of his time, save a very small portion thereof, away from the place and business of said Norman A. Kelley and in idleness; that during such period the plaintiff never performed any, only a small amount, of labor for said Norman A. Kelley or in connection with his business; and that for such small amount of labor, and for any property ever furnished by plaintiff to said Norman A. Kelley or his business, plaintiff exacted from said Norman A. Kelley full and complete payment, satisfaction, and reimbursement, and that the said Norman A. Kelley fully paid, satisfied, and reimbursed plaintiff for the same." The new matter in the answer was traversed by the reply. The circuit court heard the case on the testimony reported by a referee and entered a decree dismissing the suit, with costs, from which the plaintiff appeals.

Sam E. Van Vactor, of Heppner, for appellant.

C.E. Woodson, of Hoppner, and J.J. Southworth, of Rosco, Mont., for respondents.

BURNETT J. (after stating the facts as above).

It is well established that it is competent for the owner of property to make a contract with another person to bequeath the same to that person at the death of the owner. This doctrine is recognized in this state in the cases of Rose v. Oliver, 32 Or. 447, 52 P. 176, and Richardson v Orth, 40 Or. 252, 66 P. 925, 69 P. 455. In the first of these cases the alleged contract was denied enforcement because the proof failed to show that there was any binding agreement on the part of the claimant to correspond with the alleged agreement of the testator. In the latter case evidence was held insufficient to prove the allegations. In Hawkins v. Doe, 60 Or. 437, 119 P. 754, there were many circumstances much like those attendant in this case. The suit, however, was to compel the specific performance of an agreement to convey land which the owner failed to carry out in his lifetime. The proof, if anything, showed an intention of the owner to retain control of his property during his lifetime and to devise it by will. Besides, this being a failure of proof, the court in its discretion remitted the plaintiff to his remedy at law, especially as the land had been sold at administrator's sale prior to the decree and the purchaser was not before the court. Brown v. Lord, 7 Or. 302, cited by the defendant here, was a suit to compel specific performance of an agreement said to have been made by a father, then deceased, to convey land to his son. That suit failed because the land was uncertain in description or identity and because there was no marked change of possession of the land. In other words, the subject-matter, the performance and terms of the...