Schramm v. Burkhart

Decision Date28 July 1931
Citation137 Or. 208,2 P.2d 14
PartiesSCHRAMM, Superintendent of Banks, v. BURKHART et al.
CourtOregon Supreme Court

Department 1.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Bill of interpleader by A. A. Schramm, as Superintendent of Banks in charge of the Oregon State Bank, against Martin Burkhart individually and as administrator of the estate of Frank Burkhart, deceased, John Fellows, as administrator with the will annexed of the estate of Mary F. Burkhart, deceased Naoma Jackson, Cora Fellows, Eldridge Ingraham, Ed Ingraham Bertha Williams, Roxie Ingraham, and others. Decree for defendant first named, and the remaining defendants named appeal.

Reversed and remanded, with directions.

ROSSMAN J., dissenting.

C. A. Wintermeier, of Eugene (Howard M. Brownell, of Eugene, on the brief), for appellants.

L. G. Lewelling, of Albany, for respondent.


This suit was instituted by the bringing into court of $2,140.64 and the filing of a bill of interpleader by the state superintendent of banks, praying that the defendants set forth their several titles and interplead, settle, and adjust their demands between themselves. The defendant Martin Burkhart answered, setting forth that individually and as administrator of the estate of Frank Burkhart, deceased, he was the owner of the whole fund. The other defendants filed a joint answer in which they alleged their ownership not only of one-half of the fund, but also of one-half of all property both real and personal of which Frank Burkhart died seized or possessed.

These allegations were put in issue by a reply filed thereto by Martin Burkhart and, upon the trial of the cause, a decree was entered in his favor, from which the other defendants have appealed.

The respective rights and claims of the parties to the fund and property referred to grow out of the following facts: In April, 1912, Mary and Frank Burkhart intermarried and up to the time of her death they continued living together as husband and wife. At the time of the marriage they were well advanced in years, and no issue resulted from the marriage. She, however, had six children living by a former marriage, while he had no children, and his heirs consisted of two brothers and a sister only, all of whom are now living and one of whom is the defendant Martin Burkhart. Mary and Frank Burkhart, at the time of their marriage, had money and property about equal in value and of the value of some three or four thousand dollars each. They put their said money and property into a common fund, and with it they purchased, in their joint names, a small tract of land near Jefferson, in Linn county, upon which they resided during the remainder of their lives. The remainder of their joint money they deposited in their joint names in the Oregon State Bank at Jefferson, which bank later became insolvent and its business and assets were taken over for liquidation by the state superintendent of banks. The money brought into court is the balance of dividends declared on said account by the superintendent of banks after completely liquidating the affairs of the bank, for which a certificate was issued to Frank Burkhart; Mary Burkhart being dead. This certificate was assigned to Martin Burkhart by Frank Burkhart a day or two before his death.

On June 23, 1920, Mary Burkhart and Frank Burkhart each executed a separate will containing reciprocal provisions. Each directed that the debts and funeral expenses of the testator should be paid, and each named the other spouse as executor or executrix of the will. The other provisions of the two wills are identical in terms except in the change of the name of the testator and in the names of the heirs of the testator. Mrs. Burkhart's will provides:

"That my husband, Frank Burkhart, shall at my death have full and complete possession of all I own, of everything, of all property both real and personal, of all monies, bonds, chattels or any other securities whatsoever, and shall have and hold the same unto his death.

"Third. At the death of my husband Frank Burkhart the ( 1/2) one half of all in his possession at that time of all property real or personal of all monies, bonds, chattels or any other securities whatsoever shall immediately pass to children and daughter in law as follows: to Naoma Jackson, Cora Fellows, Roxie Ingram, Eldridge Ingram, Ed. Ingram and Bertha Williams, share and share alike."

Under Mr. Burkhart's will, Mary Burkhart's possession was to be the same in case she survived him, and, upon her death, one-half of all property in her possession was to pass to his sister, Mary Dickison, and his brothers, Robert Burkhart and Mark Burkhart, who were to share and share alike. The person named as Mark Burkhart in the will and the respondent herein, Martin Burkhart, are one and the same person.

It will be observed from a mere reading of the wills that neither testator made an absolute gift of property to the survivor. Each gave to the survivor possession of the property and the right to use and enjoy the same during the remainder of his or her natural life, and then directed that, upon the survivor's death, one-half of all the property of which the survivor died possessed should immediately pass to the heirs of the testator making the will. These wills contained reciprocal provisions, and are reciprocal or mutual wills. They show a clear intention upon the part of both testators that there was to be no division of the joint property made to the heirs of either of the testators until both of the testators were dead, and that at that time the joint property of the testators was to be divided equally between the heirs of both. If such was not the intention, then an intestacy would arise as to the survivor's one-half interest in the joint property. The difficulty in construing these wills grows out of the fact that each testator drew his will upon the theory that he or she would be the first to die and was attempting to provide that, upon the death of the other, one-half of all property then possessed by the other should immediately pass to the testator's heirs. These wills were executed by the testators at the same time and place and were attested by the same witnesses, and obviously they were drawn by the same person. The reciprocal provisions contained in them show that they must have been prepared and executed by the two spouses pursuant to an understanding and agreement entered into by them and for the purpose of making an equal distribution between their respective heirs of their joint property. It is impossible that either Burkhart or his wife was not informed of the fact that each was making a will and that the provisions of the two wills were identical in terms. The fact that these wills were evidence of a mutual compact is afforded by what the parties did in making them, and the fact that they made such will is satisfactory proof that they were made under a mutual compact to dispose of their joint property in the manner they provided for. Frazier v. Patterson, 243 Ill. 80, 90 N.E. 216, 27 L. R. A. (N. S.) 508, 17 Ann. Cas. 1003; Holman v. Lutz, 132 Or. 185, 204, 282 P. 241, 284 P. 825.

Mary Burkhart predeceased her husband, and, under the provisions of her will, he succeeded to the possession and enjoyment of her entire interest in their joint property. That it was their intention that, upon the death of the survivor, the property was to be equally divided between the heirs of both testators is proven by the oral declarations made by Mrs. Burkhart in her lifetime and by the oral declarations made by Burkhart after his wife's death. The fact that he made such declarations on numerous occasions and up to shortly before his death is amply proven by the...

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    • United States
    • Texas Supreme Court
    • March 29, 1961
    ...113 P.2d 1113, 127 P.2d 735; Findley v. Johnson, Mo.1940, 142 S.W.2d 61; Lugauer v. Husted, 228 Mich. 76, 199 N.W. 682; Schramm v. Burkhart, 137 Or. 208, 2 P.2d 14; Stump v. Harold, 125 W.Va. 254, 23 S.E.2d (3) With petitioners' second point we have little difficulty. There is evidence to s......
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    • July 14, 1950
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    • April 17, 1957 would take the case out of the statute of frauds, and equity will compel the fulfillment of the contract.' Schramm v. Burkhart, 137 Or. 208, 215, 2 P.2d 14, 17. The instant case does not fall within the rules of either of the cases cited. There was no agreement for services of any kind, ......
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