Ricks v. Brown

• Decision Date: 15 January 1974
• Citation: 15 Or.App. 160,515 P.2d 206
• Parties: Herbert E. RICKS et al., Respondents, v. Gene L. BROWN, Personal Representative of the Estate of Helen Ricks, Deceased, et al., Appellants.
• Court: Oregon Court of Appeals

Page 206

515 P.2d 206

15 Or.App. 160

Herbert E. RICKS et al., Respondents, v. Gene L. BROWN, Personal Representative of the Estate of Helen Ricks, Deceased, et al., Appellants.

Court of Appeals of Oregon.

Argued and Submitted Oct. 4, 1973.

Decided Oct. 29, 1973.

Rehearing Denied Dec. 6, 1973.

Review Denied Jan. 15, 1974.

Gene L. Brown, Grants Pass, argued the cause for appellants. On the brief was R. Gene Smith, Grants Pass.

Donald F. Myrick, Grants Pass, argued the cause for respondents. On the brief were Donald H. Coulter, and Myrick, Coulter, Seagraves & Nealy, Grants Pass.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

SCHWAB, Chief Judge.

This is an appeal from a decree of the trial court declaring that the personal representative of the estate of Helen Ricks, deceased, is holding the assets of the estate in trust for the lineal descendants of W. T. Ricks, deceased, and the children of Helen Ricks, deceased, pursuant to a contractual agreement contained in a joint, mutual and reciprocal will of W. T. and Helen Ricks. The parties agree the sole question presented is whether the contractual provision of the joint, mutual and reciprocal will bound Helen Ricks as the surviving co-testator as to property which passed to her by operation of law and not as a beneficiary under the will. We agree with the trial judge that she was so bound.

The marriage of W. T. and Helen Ricks was a second union for both. Each had issue by a former marriage. They had no children by their marriage. At the time of the execution of the will in question in 1964 the co-testators estimated their joint assets at $45,000 or $46,000. The respective contributions of the two spouses to this joint accumulation cannot be ascertained from the record in this case. The clause of the will which is the subject of the controversy provided:

'Each of us does recite that it is our intention in executing this JOINT, MUTUAL AND RECIPROCAL LAST WILL AND TESTAMENT that the same constitutes a binding contract between us to make the foregoing disposition of our respective estates, and that the foregoing provisions shall be binding upon whichever of us survives the other.'

The will may be fairly characterized as leaving all of the joint holdings to the survivor of the two co-testators, and upon the death of the survivor of them a division of the estate of the second spouse to die into two halves, with one half going to the issue of W. T. Ricks and the other half to the issue of Helen Ricks.

After the execution of the will Mr. and Mrs. Ricks loaned monies and otherwise dealt in properties to augment their joint assets. ¹ Most of these transactions were in their joint names with the inclusion of survivorship language.

W. T. Ricks died in January of 1968. No probate proceedings were instituted. With one exception, hereinafter discussed, all of the property, real and personal, of W. T. Ricks and Helen Ricks was owned jointly and with rights of survivorship between them, and that property became the property of Helen Ricks by operation of law rather than through the estate of W. T. Ricks.

Less than four months after W. T. Ricks died, the survivor Helen Ricks made a new will which left substantially everything to her issue--the defendants in this proceeding. The argument of defendants essentially divides itself into three parts:

(1) 'A contractual provision, contained in a joint, mutual, reciprocal will, or in a mutual, reciprocal will, which does not express a clear intent that it apply to property acquired by operation of law or survivorship property, is applicable only to property or benefits acquired by the surviving co-testator by reason of the provision of the will or from the estate of the first co-tenant to die.'

(2) 'The assets of the Helen Ricks estate, having been acquired by operation of law, and not as benefits from the estate of and under the will of W. T. Ricks, are (regardless of intent) not therefore bound by a contractual provision contained in the joint, mutual and reciprocal will of W. T. Ricks and Helen Ricks, dated November 16, 1964.'

(3) 'Title to all property which is an asset of the estate of Helen Ricks passed to her by operation of law, not by virtue of the joint, mutual and reciprocal will of November 16, 1964.'

As to defendants' first point, we do not agree that the will does not express a clear intent that it apply to all of the property which Helen Ricks owned at her death, regardless of how acquired. On the contrary, we interpret the language of the will, 'a binding contract between us to make the foregoing disposition of our respective estates,' as evincing a clear and unambiguous intent to have the provisions of the will apply to all assets which either might own at the time of death regardless of how acquired.

Defendants' second contention in effect argues that notwithstanding the intent of the parties a contractual provision such as the one in question here does not apply to survivorship property as distinguished from property passing by virtue of the will. Schomp et al. v. Brown et al., 215 Or. 714, 335 P.2d 847, 337 P.2d 358 (1959), is to the contrary. There the parties executed reciprocal wills which provided in pertinent part, Article IX:

'* * * (A)fter the death of each of us, the survivor shall not have the right to devise or bequeath the property which shall come to him or her Under this will, save in accordance with the terms of the reciprocal wills * * *.' (Emphasis supplied.) 215 Or. at 720, 335 P.2d at 850.

The court said:

'The title to real property owned at the time of Mr. Schomp's death was, as we have observed, held by the entireties and, therefore, passed to Mrs. Schomp by operation of law. It constituted by far the greatest element in value of the properties acquired during the marriage. But all parties concede that it was the intent of Mr. and Mrs. Schomp that it was to be treated on the death of the survivor as property subject to distribution or disposition as provided by Article IX. Therefore, if the last surviving spouse left any estate, it would include the real property previously owned by the entireties, if not previously disposed of by the surviving spouse.' 215 Or. at 719, 335 P.2d at 850.

Under the third contention, defendants argue that since nothing passed from the estate of W. T. Ricks to Helen Ricks by virtue of W. T. Ricks's will, the contract is not binding for want of any consideration.

In support of this contention defendants quote from Irwin v. First Nat'l Bank, 212 Or. 534, 321 P.2d 299 (1958), and Schramm v. Burkhart, 137 Or. 208, 2 P.2d 14 (1931), and conclude from those quoted statements that '(s)ince Helen Ricks did not 'accept any benefits under the will' * * * or 'take advantage of the provisions made by the other' * * * an essential element of the doctrine contended for by plaintiffs is missing.' The authorities are far from precise as to the nature and extent of 'benefits' they discuss. For example, there are cases in Oregon that refer to benefits of the 'agreement' rather than the 'will,' as this statement from In re Burke's Estate, 66 Or. 252, 256, 134 P. 11, 13 (1913), shows:

'The contestants cannot try out in this proceeding the question as to whether the wills were mutual and based upon an agreement that the survivor should leave his or her property to a particular person. 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 * * *.' (Emphasis supplied.)

Accord: Holman et al. v. Lutz et al., 132 Or. 185, 208, 282 P....