Patecky v. Friend

• Decision Date: 09 March 1960
• Citation: 220 Or. 612,350 P.2d 170
• Parties: Blanche F. PATECKY, Respondent, v. Lillian A. FRIEND, individually and as Executrix of the Estate of Samuel Friend, Deceased, and Jindra Bunn, Appellants.
• Court: Oregon Supreme Court

Page 170

350 P.2d 170

220 Or. 612

Blanche F. PATECKY, Respondent, v. Lillian A. FRIEND, individually and as Executrix of the Estate of Samuel Friend, Deceased, and Jindra Bunn, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 11, 1960.

Decided March 9, 1960.

Wilber Henderson, Portland, argued the cause for appellants. With him on the briefs was Earl F. G. Hurlburt, Portland.

Philip A. Levin and William M. Keller, Portland, argued the cause for respondent. With Philip A. Levin on the brief were Keller & Keller, Portland.

Before McALLISTER, C. J., and LUSK, SLOAN and DUNCAN, Justices.

DUNCAN, Justice pro tem.

Defendants appeal from a decree in equity based on findings of fact and conclusions of law of the circuit court for Multnomah county, holding that plaintiff, Blanche F. Patecky, is entitled to the entire net estate of Samuel Friend, deceased, by virtue of an oral agreement between that decedent and his former wife, Emma, whereby they contracted to leave all their property respectively to the survivor of them, and the survivor to leave all his or her property to plaintiff, their daughter and only child.

Defendant Lillian A. Friend was the second wife of and is the widow of Samuel and executrix of his estate. Defendant Jindra Bunn, unrelated to any party, is a legatee under the will. For convenience the parties other than plaintiff will be referred to by their given names.

Samuel and Emma intermarried in 1901. They worked at separate occupations for a time. From 1916 to 1922 they jointly operated stores and went broke in the latter year. In 1932 Samuel acquired the 'beginnings' of Friend's Hardware Store, and Emma worked there regularly until 1943, when her health became poor. In 1944 Samuel and Emma made a partnership agreement in writing for the operation of that store for a period of 10 years under the assumed name of Friend's Hardware Store, to share equally in profits and losses. Simultaneously, Samuel executed to Emma a bill of sale covering an undivided one-half interest in the gross assets of that business. No mention was made of the future disposition of this or any other property.

In March, 1944, attorney Edward A. Boyrie prepared for Samuel and Emma, at their request, mutual and reciprocal wills. On the 30th of that month the testators executed the wills before Mr. Boyrie and another witness. Copies of the wills were produced by Mr. Boyrie. Emma's original will is in evidence, but Samuel's original will was not produced. Under said will Samuel gave all his property to Emma if she survived him, but if she predeceased him, the property was given to plaintiff. Emma's will was identical, except that she gave everything to Samuel if he survived her. Emma died February 9, 1953, and her said will was probated with Samuel as executor. The estate approximated $20,000, all of which was distributed to Samuel.

Samuel, then 76 years of age, married Lillian on May 25, 1955, thereby effectually revoking the above-described will. ORS 114.130. Samuel died June 3, 1956, leaving a will which gave $3,000 to plaintiff, $3,000 to Jindra Bunn, and the remainder to Lillian. The will was admitted to probate with Lillian as executrix, and the appraised value was slightly in excess of $41,000.

Plaintiff's complaint in the case on appeal was filed February 25, 1957, and her amended complaint, on July 15, 1957. Plaintiff based her case on an alleged oral contract between Samuel and Emma, whereby each was to leave all his or her respective property to the other if the other survived, but if the other did not survive, then to leave it all to plaintiff on the death of the survivor of the contracting parties. Plaintiff makes no claim that the contract was based on any consideration for services to be rendered by plaintiff to either parent.

Defendants assign as error: (1) that the evidence was not sufficient to establish the claimed contract, and (2), that plaintiff was barred from prosecuting this suit because she had made an election by seeking to have the will of Samuel construed as making her the residuary legatee and devisee, which action was allegedly inconsistent with this suit.

The second assignment of error will be first decided. The complaint in equity to establish the contract and the petition to construe the will were each filed on February 25, 1957. In the latter proceeding plaintiff sought only to have the will construed to the effect that she was the residuary legatee and devisee. She did not thereby seek to void the will. By the present suit she is not seeking to void the will as such, but merely to render it subject to the terms of the alleged contract. The two proceedings appear consistent, but even if deemed inconsistent, her action in seeking a construction of the will amounts only to a mistake of remedy not precluding her from seeking to establish the contract. Medford National Bank v. Blanchard, 136 Or. 467, 299 P. 301.

Preliminary to considering the assignment of error that the evidence was not sufficient to establish the contract, it should be stated that the principle is recognized in In re Burke's Estate, 66 Or. 252, 256, 134 P. 11, 13, that:

'* * * Such an agreement is valid if performed by the making of such wills and the acceptance by the surviving party of the fruits of the agreement, but it is valid only as a contract, the performance of which by one party and acceptance by the other has taken it out of the statute of frauds. 40 Cyc. 2117, 2118. It is no objection to the probate of a will that it violates such an agreement, or revokes a former will made in pursuance of it. While such former will is revoked as a will, it still stands as evidence of the contract.'

At the trial plaintiff testified on direct examination as follows:

'Q. (By Mr. Levin) Was that statement or a statement substantially similar ever repeated by her? A. Yes, when it was repeated several times, and then at the time that we were married mother and dad both said we were leaving on our honeymoon and we were standing on the front steps just going to go into the car, and dad says, 'Remember our home is yours, Everything goes to you. You are all we have.'

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* * *

'Q. Was there any discussion with your father at about this time? A. Yes.

'Q. About Albert's coming into the store? A. Yes, there was.

'Q. What was said by him? A. Well, shortly after that, that was early in March, I believe, dad and mother were both over at the house and they were sitting in the living room and mother and dad both were talking with Albert and me both at the same time, and dad says, 'Well, you kids might as well come into the store. After all you might as well work too. We are leaving everything to you.'

'Q. Now do you recall the occasion when these wills were executed? A. We,--definitely.

'Q. What do you recall about it? A. Well, I recall that I was in the front part of the store.

'Q. Was that when you were working in the store? A. I was working in the store at the time. And I was in the front part of the store, it seems to me, waiting on a woman, showing her knives from a knife case, and mother called me to come in the back. She said, 'Blanche, when you finish, come back here. There is something that daddy wants to talk to you about.' So I went in the back of the store after I finished and mother said, 'Dad, tell Blanche how we made out the wills.' And then dad days, 'Mother and I are taking care of our property in possession and we have agreed to leave everything to each other, and when we are gone it all goes to you.' Mother says, 'That's right, daddy.'

'Q. Was there anything further said on that occasion? A. Yes, mother said, it being timely to make her will, because she wasn't feeling well, and she felt the way she had made it was the correct way because of illness in case she says, 'We have to be hospitalized, why hospitals can eat everything up.' So she felt that she was protecting daddy too.

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'Q. When did your mother die? A. February 9, 1953.

'Q. Was there any conversations that you recall by your father on that occasion or shortly thereafter relating to this subject? A. Yes, coming home in the car from the cemetery my father says, 'Well, I don't expect to be here very long and you kids will, it will all be left to you kids.' And he said, 'I have even taken care of the lot now so that I know I will be laying next to mother.'

'Q. By that he meant the cemetery lot? A. Cemetery, yes. He had purchased two lots and he said that he was ready to go. In other words, that he had had everything taken care of for himself. I said, 'Oh, daddy, you are just feeling blue now. You are going to stay here a long time.' And at that time he said that everything went to us kids. He had everything taken care of.'

Albert Patecky, husband of plaintiff, testified that late in '47 or early in '48 when they and Samuel and Emma were present the following conversation took place:

'Q. Do you recall who was present? A. Yes, Blanche's mother and father and Blanche, and of course our child.

'Q. Your son, Kenneth? A. Yes.

'Q. And what was said on that occasion, to the best of your recollection? A. To the best of my recollection the discussion had been going on for quite a while about entering into the business, into the store, to help out, and what I recall was this: That mother had mentioned the fact that they both have earned and were well off and it was a good business and there was no reason why I couldn't come in and earn what they were going to leave us. In other words----

'Q. Now what gave rise to this conversation? Was it anything to do with any change of plans on your part? A. It was very, it was a very important occasion, because I had to make a decision whether I should give up the security I had built up at the Telephone Company.

'Q. You had been with them fifteen years, I think you said? A. Correct.

'Q. Who was it that made this statement that you mentioned, do you recall which one of them? A. M...