Ohms v. Church of Nazarene, 6965

• Decision Date: 28 October 1942
• Docket Number: 6965
• Citation: 130 P.2d 679,64 Idaho 262
• Parties: WILLIAM OHMS, ALBERT OHMS, HENRY OHMS, EMMA DAVIS, CARRIE APPLINGTON PARKER, DORA DONNELLY, MAE TWIST CALLENDER, DAN OHMS and MABEL HARE, Appellants, v. THE CHURCH OF THE NAZARENE, WEISER, IDAHO, INC., and ED. R. COULTER as Executor of the Estate of Lou Ohms, deceased, Respondents
• Court: Idaho Supreme Court

130 P.2d 679

64 Idaho 262

WILLIAM OHMS, ALBERT OHMS, HENRY OHMS, EMMA DAVIS, CARRIE APPLINGTON PARKER, DORA DONNELLY, MAE TWIST CALLENDER, DAN OHMS and MABEL HARE, Appellants, v. THE CHURCH OF THE NAZARENE, WEISER, IDAHO, INC., and ED. R. COULTER as Executor of the Estate of Lou Ohms, deceased, Respondents

No. 6965

Supreme Court of Idaho

October 28, 1942

WILLS-CONTRACT TO DEVISE-CONSTRUCTION.

1. Rules of construction need not be employed in search of testator's intention, expressed clearly and unequivocably in the will.

2. In cases involving a surviving spouse's disposition of property at variance with mutual wills, the lodestar is the intention of the parties, and the disposition during the lifetime of a surviving spouse, if not prohibited; must be reasonable.

3. The courts should construe contracts according to the plain language used by the parties, and should not substitute what they think the parties should have agreed to for what the contract shows they did agree to.

4. Mutual contract between husband and wife obligating wife to leave to husband's children and grandchildren, if she survived him, the property of which she died seized did not include property which surviving wife had owned absolutely and which she had given away prior to her death.

5. Where husband deeded realty to wife and the spouses executed their mutual, reciprocal, concurrent wills and a mutual contract providing that their property should become the property of the survivor at the death of one and property owned by the survivor at his death should go to husband's children and grandchildren, husband intended that surviving wife might dispose of the realty as she saw fit during her life, but that the realty should be subject to the will if possessed by wife at her death.

6. Supreme Court would give effect to spouses' mutual contract providing that their property should become the property of the survivor at the death of one and any property owned by the survivor at his death should go to husband's children and grandchildren, as made by the parties rather than attempt construction by implication or insertion by reference.

7. Where husband deeded realty to wife and the spouses executed a mutual contract providing that their property should become property of survivor at death of one and any property owned by the survivor at his death should go to husband's children and grandchildren and no restriction upon alienation during the life of survivor was incorporated in the contract contract would be limited to restrictions against testamentary disposition and did not prohibit alienation of the realty by the surviving wife by deed.

8. A surviving wife's deed of realty to a church was not "testamentary" in character within mutual contract with her husband restricting testamentary disposition of the surviving spouse's property to husband's children and grandchildren because title vested in grantee reserving a life estate to grantor.

Appeal from the District Court of the Seventh Judicial District, in and for Washington County. Honorable Thomas E. Buckner District Judge.

Action to set aside deed. Judgment for respondents. Affirmed.

Judgment affirmed. Costs to respondent.

Frank D. Ryan, B. W. Oppenheim and W. B. Bowler for appellants.

Lou Ohms as the surviving party to a contract with her husband Otto Ohms, under which mutual wills were made, had no right to dispose of her property differently than in the manner contemplated by the agreement, and in particular she had no right to convey the property here involved to the respondent Church of the Nazarene in violation of the terms and intent of the said contract and mutual wills, when such conveyance was not made for her support and maintenance, and such conveyance is subject to cancellation in equity. (Brown v. Johanson, Colo. 194 P. 943; Doyle v. Fischer, Wis. 198 N.W. 763; 28 R. C. L. 172 Annotation, 33 A. L. R. 733; Morgan v. Sanborn, N. Y. 122 N.E. 696; Stuckey v. Truett, S. C. 117 S.E. 192; Williams v. Williams, Va. 96 S.E. 749; Allen v. Ross, Wis. 225 N.W. 831, 64 A. L. R. 180; Sample v. Butler University, Ind. 4 N.E.2d 545; 5 N.E.2d 888; Annotation, 108 A. L. R. 867.)

Logan D. Hyslop and George Donart for respondents.

Although a party has agreed to leave his property to a certain person, for a valuable consideration, he does not thereby bind himself not to make "gifts" from his property. ( Dickinson v. Seaman, (Ny.) 20 L. R. A. NS. 1154, (85 N.E. 818); Rolls' Estate (Cal.), 226 P. 608; Fourth National Bank v. First Presbyterian Church, 7 P.2d 81.)

In an action to set aside a deed of gift, the burden of proof rests upon the plaintiff. Belief in a certain religion is not evidence of insanity. (Qurtis v. Kirkpatrick, 9 Idaho 629.)

If undue influence is the basis of an action to cancel a deed, it must be strong enough to overcome the will. Influence gained by kindness is not regarded as undue. (Turner v. Gumbert, 19 Idaho 339.)

A promise to make a will leaving property to a certain person is revokable. The remedy for the breach is an action for damages. (Page on Wills, Second Addition, paragraph 90.)

GIVENS, C. J. Budge, Morgan, and Holden, JJ., concur. AILSHIE, J. (Dissenting).

OPINION

GIVENS, C. J.

Appellants are respectively the children and one grandson of apparently the second marriage of Otto Ohms, deceased. This marriage was consummated and continued while the deceased was living in Oregon, during which time he accumulated an estate variously estimated at about $ 40,000, which some time prior to 1918 was divided between him and his second wife upon their divorce, whereupon he moved to the Weiser Valley in Idaho, later marrying a widow with children. There is uncertainty as to whether he lost the money he had when he came to Idaho, but in any event, he later again accumulated considerable property, among which was the forty acres in question herein. Upon the death of the wife whom he married upon first coming to Idaho, he married, November 6, 1918, his last wife, Lou Ohms, a maiden lady of years, now deceased.

March 20, 1931, Otto Ohms deeded the forty acres in question to his then wife, Lou Ohms. March 23, 1931, they made mutual, reciprocal, concurrent wills (Deseumeur v. Rondel, 76 N.J. Eq. 394, 74 A. 703), devising and bequeathing all of the property of which either might die seized or possessed to the other, as follows:

"In the event that my beloved wife Lou Ohms shall be living at the time of my death, I do will and bequeath unto her absolutely all of the real and personal property whatsoever, of every name and nature, which I may own at the time of my death, the same to be hers absolutely.

Should my beloved wife Lou Ohms die before I pass on, then it is my express will and desire that all of the property, both real and personal, of which I may die possessed, shall be divided share and share alike, between my children, William Ohms, Albert Ohms, Henry Ohms, Emma Davis, Carrie Applington, Dora Donnelly, Mae Twist, Dan Ohms, Mable Moore, and one share to Ray Patton and Harvey Patton, the surviving children of my deceased daughter, Sarah Ohms Patton."

"Should my beloved husband Otto Ohms survive me, then it is my express will and desire and I do hereby will and bequeath to him all of the real and personal property of every name and description owned by me at the time of my death. Should I survive my beloved husband Otto Ohms, then, at the time of my death I hereby will and direct that all of the property of every name and description which I may own at the time of my death shall be divided, share and share alike between the following children and heirs at law of Otto Ohms my husband, to-wit:" [Here follow the names of the children and grandchildren of Otto Ohms, named in his will.]

Coincidentally, they executed a mutual contract providing that in consideration of the execution of said wills they agreed that all property owned by the one dying last should go to the children of Otto Ohms (appellants herein, including the grandson who holds his deceased parent's share).

"WHEREAS, It is the express will and desire of each of said parties that upon the death of either one of them all of the property owned by the other at the time of his or her death, shall go to, and become the property of the surviving member of this marriage, and at the death of the last member of the marriage, all of the property owned by the one dying last shall go to the children of Otto Ohms."

June 6, 1934, Otto Ohms died testate, and Lou Ohms acceded to his property, appraised at $ 2,475. Thereafter, Lou Ohms on November 7, 1934, and October 22, 1935, made other wills at variance with the above will of March 23, 1931, and the contract mentioned. Subsequently, November 3, 1938, being informed that said wills were in conflict with the contract, and being advised that she could not will this property to the church because the same would be a breach of the contract above mentioned, she revoked the previous wills by will made that day, reviving the terms and provisions of her first will, and deeded the land in question, valued at $ 2,500, to respondent church.

Following the death of Lou Ohms, July 23, 1939, her executor did not list the property in question as an asset of her estate otherwise appraised at $ 2,092.29, on the theory that the deed was valid. Thereupon, the present action was instituted in equity by appellants to set aside the deed on the ground it was contrary to the intent and purpose of the contract above mentioned, also urging that it was obtained through undue influence. The latter contention has been entirely abandoned, and the matter is before us solely upon the question of whether or not the contract prohibited the giving of this deed. The trial court held the deed...