Mathews v. Tobias

• Decision Date: 11 July 1928
• Citation: 268 P. 988,126 Or. 358
• Parties: MATHEWS v. TOBIAS ET AL.
• Court: Oregon Supreme Court

268 P. 988

126 Or. 358

MATHEWS v. TOBIAS ET AL.

Supreme Court of Oregon

July 11, 1928

Department 2.

Appeal from Circuit Court, Multnomah County; Robt. Tucker, Judge.

Suit by Anna Eliza Mathews against Mattie M. Tobias and others. From a decree of dismissal, plaintiff appeals. Affirmed.

Ishan N. Smith, of Portland (John F. Logan, of Portland, on the brief), for appellant.

T. J Cleeton and Frank J. Lonergan, both of Portland, for respondents Mattie M. Tobias, David S. Tobias, Helen Tobias and Emily A. Recard.

Robert R. Rankin, of Portland, for respondent Goodyear Tire & Rubber Co.

BELT J.

This is a suit to impress a trust upon real property by virtue of an alleged oral contract to devise it by will. In 1886 Robert T Dale died, leaving surviving him his widow, Anna E. Dale, and his daughter, the plaintiff herein. At the time of his death Dale was the owner in fee of Lot 3, block 89, Couch's addition to the city of Portland, Or., and other real property not the subject of this controversy. On March 11, 1916, about 9 weeks before her death, plaintiff's mother, then 90 years of age, executed a will devising lot 3 to her great granddaughter, Helen Tobias, the granddaughter of plaintiff and daughter of the defendant Mattie M. Tobias and her husband, David S. Tobias. After death of the mother and administration of the estate was commenced, the plaintiff instituted a proceeding to contest the validity of this will, asserting that her mother was incompetent to make testamentary disposition of her property, and also that the will was executed as the result of undue influence. This suit finally terminated in the Supreme Court, where the will was upheld. See Dale's Estate (Tobias v. Mathews) 92 Or. 57, 179 P. 274. Plaintiff then commenced suit for specific performance of the alleged contract which she says was had with her mother whereby the latter agreed to devise by will the property in question in consideration that the plaintiff would care for and support her and her property during the remainder of her lifetime. On account of the insufficiency of the complaint the Supreme Court affirmed the decree of the lower court dismissing this suit. Mathews v. Tobias et al., 101 Or. 605, 201 P. 199. Plaintiff then commenced suit in the instant case by filing a complaint alleging facts in keeping with the decision of this court. After hearing upon the merits, the trial court again entered a decree dismissing the suit. Plaintiff appeals.

It is settled in this state, beyond controversy, that it is competent for a person to make a binding agreement to devise real property by last will and testament. Mathews v. Tobias, supra; Woods v. Dunn, 81 Or. 457, 159 P. 1158; Kelley v. Devin, 65 Or. 211, 132 P. 535. However, where the contract is oral and the promisor's lips are sealed by death, courts subject it to the closest scrutiny. It is difficult to defend against such alleged agreements and they are often relied upon to perpetrate fraud. It is generally held, therefore, that the contract must be established by clear and satisfactory evidence. As stated by Mr. Justice Brown on former hearing, the agreement must be "clear, just, definite, reasonable, and mutual in its obligations. * * *" Furthermore, there must be a strict performance by the promisee of all the terms of the contract. Holder v. Harris, 121 Or. 432, 248 P. 145, 253 P. 869, 254 P. 1021; Leadbetter v. Price, 103 Or. 222, 202 P. 104; Hawkins v. Doe, 60 Or. 437, 119 P. 754, Ann. Cas. 1914A, 765. The law of the case was settled on former appeal and it is not deemed necessary to restate the principles involved. The decision of the case hinges upon questions of fact.

We inquire: Did the plaintiff and her mother make the contract as alleged? Has it been established by clear and satisfactory evidence? Was there such past performance of the contract by plaintiff as to take it without the statute of frauds? Were the services rendered by plaintiff to her mother of such nature and character that they could not be compensated for in money?

In answer to the first question, we think it extremely doubtful that the alleged contract ever existed. It is certain at one time the mother intended to leave plaintiff this property, as evidenced by the first will made approximately at the time plaintiff was married, in 1889. However, it appears that an estrangement arose...