Ridders v. Ridders

• Decision Date: 23 March 1937
• Citation: 156 Or. 165,65 P.2d 1424
• Parties: RIDDERS et al. v. RIDDERS et al. [*]
• Court: Oregon Supreme Court

65 P.2d 1424

156 Or. 165

RIDDERS et al. v. RIDDERS et al. ^[*]

Supreme Court of Oregon

March 23, 1937

Department 2.

Appeal from Circuit Court, Benton County; Carl E. Wimberly, Judge.

Suit by Henry T. Ridders and others against Lena Ridders and others. From an adverse decree, plaintiffs appeal, opposed by named defendant, who was the only answering defendant.

Affirmed.

W. B. Shively, of Portland, for appellants.

Frank J. Lonergan, of Portland, and A. K. McMahan, of Albany (Marks & McMahan, of Albany, and Carson & Carson, of Salem, on the brief), for respondent.

CAMPBELL Justice.

On October 18, 1921, Mary Ridders, Lena Ridders, and Frank Ridders, all unmarried, executed their last wills and testaments. These wills were executed at the same time, at the same place, all drawn by the same attorney, with the same witnesses, and, while not identical, were quite similar in purport, and bequeathed the bulk of each one's property to the others or to the survivors or survivor. Each will was complete in itself and made no reference to the others. Mary and Lena, in their will, named Frank as executor, and Frank's will named Lena as executor. Lena bequeathed $500 to the Benedictine Fathers at Mt. Angel, Or. Mary left $300 to the parish priest in charge of St. Mary's Catholic Church at Albany, Or. Frank left $250 to the parish priest in charge of St. Mary's Catholic Church at Albany, Or., and $250 to the Benedictine Fathers at Mt. Angel, Or.

On October 16, 1923, Mary died and her will was probated and the property distributed according to its terms.

On March 15, 1930, Lena revoked her will of October 18, 1921 and executed a new one. This was done, as Lena testified with the full knowledge of Frank. Frank died September 27 1932, without revoking or changing the will of October 18, 1921. Lena who was named as executrix therein, presented the will to the probate court, and the will was admitted to probate. The probate proceedings are still pending.

Henry Ridders, John Ridders, Ben J. Ridders, and Frederick Ridders, plaintiffs herein, Henry, John, and Ben being brothers of the decedent and Frederick his nephew, brought this suit against Lena and the other beneficiaries under the will and against three other heirs at law who refused to join with the plaintiffs, seeking to impress a trust upon decedent's property in favor of the heirs at law.

In the complaint it is alleged, in effect, that prior to the making of the wills, above referred to, Mary, Lena and Frank entered into an agreement to make reciprocal wills and that the wills above referred to were the result of that agreement.

It is further alleged that: "*** Lena Ridders and the said Frank Ridders, for a valuable consideration passing one to the other, entered into an agreement whereby each of them *** should cancel and revoke the agreement to dispose of their property by the said reciprocal wills made on the 18th day of October 1921, as aforesaid, and that both *** should consider the will of the other as revoked and as though no will existed and that each should be free, by a subsequent will duly made, to dispose of his respective property, and said Frank Ridders relied upon the promise of the said Lena Ridders to consider his said will of October 18th, 1921, as revoked and his estate as being intestate and that she would distribute the same among the heirs at law of the said Frank Ridders."

To this complaint, Lena Ridders filed an answer, the other defendants not appearing, which admitted the execution of the wills, but denied that there was any agreement that said wills should be reciprocal and denied that she and Frank entered into any agreement regarding the revocation of said will or any part thereof.

To this answer, plaintiffs filed a reply in which they denied that the will offered for probate by Lena Ridders is the last will and testament of Frank Ridders and alleged that the will offered for probate by Lena Ridders was automatically revoked by the act of Lena Ridders in changing her will and executing a new one.

A trial was had, at which a very lengthy record was made, and the trial judge found in favor of defendant Lena Ridders, dismissed plaintiff's complaint, and declared Lena to be the sole owner of the residue of decedent's estate. Plaintiffs appeal.

Lena Ridders, the only answering defendant in the court below, is the sister of Frank Ridders, the deceased, and, at the time of the trial, was fifty-two years and eight months of age. She was born and raised on what is known as the Ridders farm in Benton county about twelve miles from Corvallis and not far from Albany. To her father and mother, twelve children were born. Some died and others moved away to make homes for themselves. The father died in 1892, and at the time of the mother's death in 1913, three children remained on the farm, Mary, Lena, and Frank. None of these three children ever married.

Mary had been an invalid before her death for over thirty years. Part of that time she was bedfast, blind, and had lost the power of speech. She subsequently regained her speech, and during the later years of her life was able to move around in a wheel chair.

Frank, the brother, tended to the farm, and Lena took care of her sister Mary and performed the household duties. It is needless to say that taking care of an invalid so sorely afflicted as was Mary, was an arduous task. Throughout the protracted illness of the mother, Frank and Lena maintained the home and tended Mary faithfully, and continued to do so for a period of over ten years after the mother's death.

There was much testimony to show that the relationship between the three children was very affectionate, helpful, and mutually considerate. Many witnesses testified that they were "friendly" towards each other; "I never saw anybody get along better"; "it was just wonderful, I thought they got along as nice or nicer than any family I ever saw"; and more testimony to the same effect and no testimony to the contrary.

It would appear that these people, having passed the middle year of the biblical span of life allotted to man, began to think that death might overtake them at any time. So Frank advised his sisters that he intended to make a will. The sisters suggested that they would like to do the same and informed Frank how they wished to dispose of their property. Frank thereafter consulted the late Honorable Gale S. Hill, who had long been the family's legal adviser, and employed him to prepare the wills in accordance with the wishes of himself and sisters. Because of the affliction of Mary and her inability to get around, it was decided that Mr. Hill, after preparing the wills, should come out to the home and there have the wills executed and published. Frank at that time suggested that Mr. Hill and his partner Mr. Marks when they brought out the wills to come early...