Mathews v. Tobias

• Decision Date: 11 October 1921
• Citation: 101 Or. 605,201 P. 199
• Parties: MATHEWS v. TOBIAS ET AL.
• Court: Oregon Supreme Court

201 P. 199

101 Or. 605

MATHEWS v. TOBIAS ET AL.

Supreme Court of Oregon

October 11, 1921

Department 1.

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

Suit by Nannie Mathews against Mattie M. Tobias and others. Decree for defendants, and plaintiff appeals. Affirmed.

This is a suit in equity to enforce specifically the terms of an alleged contract to devise to Nannie Mathews, by will, lot 3 in block 89, Couch's Addition to the city of Portland Or.

The complaint alleges that the plaintiff, Nannie Mathews, is the daughter of Robert T. Dale and Anna E. Dale, his wife, both of whom are deceased; that the defendant Mattie M. Tobias is the daughter of the plaintiff; that the defendant David S Tobias is the husband of Mattie M. Tobias, and that Helen Tobias is the daughter of the defendants Mattie M. and David S. Tobias. The complaint further alleges that Robert T. Dale died in June, 1886, leaving as heirs Anna E. Dale, his widow and Nannie Dale, a daughter; that prior to his death he had deeded to Anna E. Dale the parcel of real property hereinbefore mentioned, together with two other lots, all of which property was then of little value; that the widow had difficulty in meeting her living expenses, taxes and charges upon said property; that, in order to induce her daughter Nannie Dale, to assist her in paying her living expenses, repairs, and taxes upon said property, she agreed with her daughter that, if she would assist her, Anna E. Dale, in meeting her living expenses, repairs, and taxes upon said property, that she would, upon her death, devise and convey by will, to her daughter, Nannie Dale, said lot 3; that Nannie Dale, plaintiff herein, accepted said offer, and agreed to, and did, for many years, live with her mother, help pay her living expenses, taxes, repairs, and the upkeep of said property; thereafter, Nannie Dale married Ezekil Mathews, and said contract was renewed by the mother with her daughter, Nannie Mathews, and Ezekil Mathews, her husband, by agreeing that, if they would live with and assist her in meeting her living expenses, repairs, and taxes upon her property, and if they would move a house upon said lot 3, Anna E. Dale would make a will whereby she would convey said lot 3 to her daughter; that the plaintiff and her husband accepted said offer and contract; that, in reliance upon said agreement, plaintiff, for many years, and down to and including the year 1914, assisted her mother in paying her living expenses, making repairs on her property, paying taxes thereon, and bought and moved a house upon said lot 3; and, by means of such assistance given by plaintiff and her husband in reliance upon said contract, the mother, Anna E. Dale, was enabled to retain title to her real property; that in consideration of the money and assistance furnished to her by her daughter and son-in-law, Nannie and Ezekil Mathews, the improving of the property and the payment of taxes and expenses by them during all said years, Anna E. Dale made and executed a will whereby she performed said contract with plaintiff and willed said lot to the plaintiff, depositing said will with one George Watkins, where it remained for many years; that the aforesaid contract and will thereby became an irrevocable contract and will on the part of the said Anna E. Dale; that in 1914, and in violation of her agreement with the plaintiff, Anna E. Dale obtained said will from George Watkins and destroyed the same; that on or about the 11th day of March, 1916, Anna E. Dale, in violation of her contract with plaintiff, made and executed a will whereby she devised lot 4, in said block 89, Couch's Addition, to the defendant Mattie M. Tobias, and attempted to will said lot 3 to the defendant David S. Tobias, in trust, for Helen Elizabeth Tobias, plaintiff's granddaughter.

The complaint likewise attacks the validity of a lease upon said lot 3 to the Goodyear Tire & Rubber Company, as well as a mortgage upon said real property to Emily A. Reckard.

The defendants deny the existence of the alleged contract involved in this controversy, and aver the validity of the lease, also of the mortgage.

The case was tried, argued, and taken under advisement, and a decree rendered against the plaintiff and in favor of the defendants, without any findings of fact or conclusions of law. Plaintiff appeals, and assigns as error:

"That the court committed error in rendering said decree against appellant, and in each and every part thereof, and in not rendering a decree as prayed for in the complaint."

C. P. Olson, of Portland (Ralph R. Duniway and Olson, Dewart & Bain, all of Portland, on the brief), for appellant.

R. W. Wilbur, of Portland (Wilbur, Spencer, Beckett & Howell and E. K. Oppenheimer, all of Portland, on the brief), for respondents.

BROWN, J. (after stating the facts as above).

This case, like many others, illustrates the ambulatory character of wills. The devising of property by will is a right conferred by law. So far as the statute is concerned, Anna E. Dale had the right to change her mind with reference to the beneficiaries of her real property as often as she chose. We assume that her testament was the written expression of her free act and will. But it is asserted that the testatrix, in a previous will, had made the plaintiff her chief beneficiary, and for a consideration had bargained away her right to alter that will. This may be true. The inquiry then is: Was the alleged contract entered into, and, if so, did it make the will of Anna E. Dale irrevocable?

Before a court of equity is empowered to exercise its discretion in this case, the cause must come before it with proper allegation of fact, supported by proof of a binding agreement that is clear, just, definite, reasonable, and mutual in its obligations, in all its parts.

"Equity will construe the contract to devise strictly against the complainant so as not to interfere with freedom of testamentary disposition." Pomeroy's Eq. Jur. (5th Ed.) § 2168.

It has been judicially determined that persons may lawfully contract with reference to the disposition of property by will. Anna E. Dale was a competent person to execute a will; hence she could lawfully enter into a valid agreement binding herself to make a particular testamentary disposition of her real property. In re Dale's Estate, 92 Or. 57, 179 P. 274; Kelley v. Devin, 65 Or. 211, 132 P. 535; Woods v. Dunn, 81 Or. 457, 159 P. 1158; 25 R. C. L. 311. The defendants, however, deny the execution of the alleged contract and its performance, and invoke the protection of the statute of frauds.

A contract to devise real property by will is within the statute of frauds, and, in order to remove such an agreement from the protection of the statute, and enforce its specific performance, there must be adequate proof to establish the contract to the satisfaction of a court of equity, accompanied by such evidence of part performance as will make it a fraud upon the plaintiff not to complete the contract.

The courts are practically a unit in holding that, where a party has made a just and valid contract to devise property by will, and the agreement has been clearly proved, but breached by the promisor, equity will, in a proper case, specifically enforce it after the promisor's death by seizing the property which is the subject-matter of the agreement and fastening a trust on it in favor of the person to whom the decedent agreed to give it by will. Kelley v. Devin, supra; Woods v. Dunn, supra; 5 Pomeroy's Eq. Jur. (5th Ed.) § 2168, and notes. Also see extensive note with collection of authorities, Ann. Cas. 1914A, 399. It has been said that the enforcement is made in harmony with the principle that courts of equity will not allow the statute of frauds to be used as an instrument of fraud. Rowell v. Smith, 123 Wis. 510, 102 N.W. 1, 3 Ann. Cas. 773; more v. White, 2 Caines, Cas. (N. Y.) 87, 2 Am. Dec. 323.

It is written that:

"Where the situation is such that the promisee cannot be restored to his original position, to permit the promisor to repudiate his agreement under cloak of the statute of frauds, having received a substantial and valuable consideration, would be highly inequitable. Courts of equity, from the very beginning, have striven to maintain the statute in its integrity as a preventive of fraud,

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