Schomp v. Brown

Decision Date01 April 1959
Citation215 Or. 714,335 P.2d 847
PartiesRobert R. SCHOMP, Allie Owens and Margaret Misener, Respondents, v. Gertrude K. Schomp BROWN, executrix of the estate of Robert Hugh Schomp, deceased; Gertrude K. Schomp Brown, Appellant, Harold M. Brown and William Harold Mare, Defendants.
CourtOregon Supreme Court

Frank H. Hilton, Portland, argued the cause for appellant. With him on the briefs was Karl F. Glos, Portland.

William G. Dick, The Dalles, argued the cause for respondents. On the brief were Dick & Dick, The Dalles.


WARNER, Justice.

This is a suit for a declaratory judgment. It seeks a decree declaring that the defendant Gertrude K. Schomp Brown, under the will of Robert Hugh Schomp, deceased, holds, as trustee, all the property received by her from said testator's estate on final distribution and all property that she might thereafter acquire from the possible sale, hypothecation or other use of said property. It also prays for a further holding that plaintiffs and defendant William Harold Mare are, with her, the beneficiaries of said trust in accordance with the terms of a contract for reciprocal wills made by and between Robert Hugh Schomp, deceased, and the defendant Mrs. Brown, then the wife of the decedent-testator.

The decree of the circuit court impressed a constructive trust upon the property for the benefit of plaintiffs and the defendants Mare and Mrs. Brown. It also enjoined her, as trustee, from transferring any part of the corpus to her husband, defendant Harold M. Brown, or to any other man that she might thereafter marry. From this decree, defendant Gertrude K. S. Brown appeals.

Robert Hugh Schomp and Gertrude K. S. Brown had been married a little more than 25 years when he died on the twenty-eighth day of May, 1954. At the time of their marriage, Mr. Schomp had four children by a prior marriage: Robert R. Schomp, Allie Owens and Margaret Misener, the plaintiffs, and a son George Schomp. George died shortly before his father. The defendant Mrs. Brown is the mother of defendant William Harold Mare, a son by an earlier marriage. It is our understanding that no children were born to the Schomps.

The testator and his wife had accoumulated considerable property, to which each had contributed funds in its acquisition. After the sale of their ranch in Wasco county, they moved to Portland. There they purchased real property. At the time of Mr. Schomp's death this was held by them as tenants by the entireties.

In 1947 the Schomps gave attention to making reciprocal wills. The ones then executed were later replaced by the wills which they signed on May 17, 1950. Both wills embodied identical provisions and both members of the marriage signed the will of the other.

We will refer only to those articles of Mr. Schomp's will which have a bearing on our conclusions here. By Article III, he gives a legacy of $25 to each of his four children by his previous marriage. The following Article IV reads:


'All of the rest, residue and remainder of my property, wherever situated, real and personal, I give, devise and bequeath to my wife, Gertrude K. Schomp.'

Article V of decedent's will makes provision as to who shall take in the event his wife predeceases him or if they die in a common accident. It follows:


'In the event my said wife should predecease me, or if we should lose our lives in the same accident, or, if my said wife should die prior to the distribution to her of the assets of my estate, then, in that event, I give, devise and bequeath the said residue as follows:

'Robert R. Schomp, Allie Schultz (also known as Mrs. Lee Owens), George Schomp and Mrs. Robert Misener, who are my four children by a former marriage, and William Harold Mare, who is my wife's son by a previous marriage, are referred to in this and in the following paragraphs of the will as 'children', and all reference in the said paragraph to children shall refer to the five individuals named in this paragraph, and to no other persons.

'In the event of the happening to my said wife of any of the contingencies set forth in Paragraph V of this will, I direct my executrix to divide the said residue of my estate into as many equal parts as there are then children surviving, or who have deceased with issue surviving. One such equal part I give, devise and bequeath unto each of the children who is then surviving, with the further provision that if any of such children shall leave surviving issue, such issue shall take their parents' share by right of representation.'

Although the 1950 will of the then Mrs. Schomp is not in the record, her testimony confirms that it followed the identical pattern of her husband's will and would have, had she predeceased him, accomplished the same results they both sought to achieve by executing mutual wills. This would mean that the surviving spouse would take title to all property of the decedent spouse (except for nominal legacies to children) and under the will of the surviving spouse, the surviving children or the issue of any deceased child would, under Article V, take whatever property the last spouse owned.

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.

After her husband's death, the former Mrs. Schomp married defendant Harold M. Brown on December 26, 1954, and they are now husband and wife. From here on we will refer to the former Mrs. Schomp as Mrs. Brown.

The 1950 will of Mrs. Brown was revoked by operation of law upon her subsequent marriage to Mr. Brown. ORS 114.330. But the agreement which underlies the contractual wills of the Schomps is irrevocable if the survivor takes advantage of the provisions made by the other. Schramm v. Burkhart, 137 Or. 208, 215, 2 P.2d 14; Ankeny v. Lieuallen, 169 Or. 206, 218, 113 P.2d 1113, 127 P.2d 735. And if breached, any party in interest who suffers thereby has a remedy in an action on the contract. Van Vlack v. Van Vlack, 181 Or. 646, 666, 668, 182 P.2d 969, 185 P.2d 575; Florey v. Meeker, 194 Or. 257, 277, 240 P.2d 1177. Such a reciprocal or mutual will, even though revoked, still stands as evidence of the contract. In re Burke's Estate, 66 Or. 252, 257, 134 P. 11; Van Vlack v. Van Vlack, supra (181 Or. at page 667, 182 P.2d at page 977). In this instance we find all the terms of the agreement embodied in Mr. Schomp's will.

For the reasons which follow, we find no trust was created by the reciprocal wills nor was it contemplated by the parties to the agreement of 1950.

The touchstone of the common purpose and accord of the Schomps is found in Article IX, which reads:

'This will is reciprocal in its terms with a will this day executed by my said wife, Gertrude K. Schomp, and both wills are made in accordance with the terms of the following agreement between us for the disposition of our property after our deaths; after 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; although the survivor may, during his or her lifetime, dispose of the...

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9 cases
  • Wadsworth v. Talmage
    • United States
    • Oregon Supreme Court
    • October 10, 2019 See Montgomery v. U.S. Nat’l Bank et al. , 220 Or. 553, 570, 349 P.2d 464 (1960) (using that wording); Schomp et al. v. Brown et al. , 215 Or. 714, 716, 335 P.2d 847, decision clarified on denial of reh’g , 215 Or. 714, 723, 337 P.2d 358 (1959) (same). And in several more cases, we h......
  • Schaad v. Lorenz
    • United States
    • Oregon Court of Appeals
    • July 11, 1984
    ...See Lewis v. Siegman, 135 Or. 660, 665, 296 P. 51, reh'g den. 135 Or. 660, 667, 297 P. 1118 (1931); see also Schomp, et al. v. Brown, et al, 215 Or. 714, 335 P.2d 847, reh'g denied 215 Or. 723, 337 P.2d 358 (1959); Ellinwood and Ellinwood, 59 Or.App. 536, 651 P.2d 190, rev. den. 294 Or. 460......
  • Kerper v. Kerper
    • United States
    • Wyoming Supreme Court
    • September 1, 1989
    ...also quoted in Shook v. Bell, 599 P.2d at 1323). We went on to state: "We said in Stringer, supra, adopting the holding in Schomp v. Brown, 215 Or. 714, 335 P.2d 847, that mutual or reciprocal wills, even though revoked, will stand as evidence of the contract. The agreement which provides t......
  • Shook v. Bell
    • United States
    • Wyoming Supreme Court
    • August 21, 1979
    ...or by inference." 79 Am.Jur.2d, Wills, supra, § 811 at p. 865. We said in Stringer, supra, adopting the holding in Schomp v. Brown, 215 Or. 714, 335 P.2d 847, that mutual or reciprocal wills, even though revoked, will stand as evidence of the contract. See, Van Vlack v. Van Vlack, 181 Or. 6......
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