Taylor v. Wait

• Decision Date: 20 September 1932
• Citation: 14 P.2d 283,140 Or. 680
• Parties: TAYLOR et al. v. WAIT et al. [*]
• Court: Oregon Supreme Court

14 P.2d 283

140 Or. 680

TAYLOR et al. v. WAIT et al. ^[*]

Supreme Court of Oregon

September 20, 1932

In Banc.

Appeal from Circuit Court, Marion County; Gale S. Hill, Judge.

Suit by Grace Rebecca Taylor and others against Ennis D. Wait and others and John Edward Barry, and John Edward Barry as executor of the last will and testament of George J. Moore deceased. From a decree for plaintiffs, defendant Barry appeals.

Affirmed.

Geo Black, Jr., and Harrison G. Platt, both of Portland (Platt Platt, Fales, Smith & Black, of Portland, on the brief), for appellant.

Custer E. Ross and John H. Carson, both of Salem, for respondents.

BELT, J.

This is a suit for specific performance of a contract to make a will and to impress a trust on the residue of the property of the estate of George J. Moore, deceased. It is alleged in the complaint that, on or about March 15, 1906, George J. Moore and his wife, Rebecca A. Moore, entered into an agreement to make mutual and reciprocal wills providing for the ultimate disposition of their respective properties in favor of the plaintiffs. It is averred that, pursuant to this agreement, George J. Moore, on March 22, 1906, executed his will wherein he gave and bequeathed all of his property to his wife, providing in the event of her death during his lifetime that it should then become the absolute property of Grace Rebecca Taylor, Clara Holton Lewis, and Alice Holton, the plaintiffs herein, share and share alike. This will was executed in the office of A. O. Condit, attorney at law, in the city of Salem, Or. John Moir and F. W. Spence subscribed their names thereto as attesting witnesses. The will of Rebecca was also prepared by Mr. Condit, and it was executed by her in the presence of W. H. Scott and C. E. Nash at her home on the farm about 12 miles distant from Salem. The will, which is dated March _____, 1906, provides, in effect, that her husband shall have a life estate in all of her property, and, upon his death, it shall become the absolute property of her three nieces, Grace Rebecca Taylor, Clara Holton Lewis, and Alice Holton, share and share alike. Rebecca also provided in her will that, in the event of the death of her husband before her decease, her property should go absolutely and forever to the three nieces above named. Prior to the execution of the wills, on March 17, 1906, Moore and his wife executed deeds, each in favor of the other, purporting to convey about 226 acres of land. The deed from Rebecca was not recorded by Moore until June 2, 1908, some months after her death, which occurred on September 4, 1907. It appears from the testimony of W. S. McClain, who prepared these deeds and acted as notary in their acknowledgment, that Mr. and Mrs. Moore told him that they were exchanging deeds to save probate expenses in the event of death. Plaintiffs contend that these deeds were testamentary in character and were made pursuant to the agreement making them the ultimate beneficiaries under the wills.

After Mr. and Mrs. Moore had executed their wills, the instruments were returned to the office of their lawyer, Mr. Condit of Salem, placed in separate envelopes, and kept among the files of his office until the commencement of this suit in 1930. Mr. Condit died March 22, 1925, but the wills were produced by Mr. Ronald Glover who carried on the practice of law in the same office.

On April 27, 1906, by a codicil to his will, Moore bequeathed to A. O. Condit the sum of $5,000. It was provided, however, that, in the event of the testator's death before that of his wife, the said sum of money should be kept on interest during the lifetime of his wife and the income therefrom used for her support and maintenance.

On March 20, 1909, Moore executed a will devising and bequeathing all of his property, real and personal, to the same three nieces, share and share alike.

George Moore died in Clackamas county, Or., on October 16, 1930, and there was filed in the probate court for such county an instrument purporting to be his last will and testament, executed on July 19, 1930. In this will the defendant John Edward Barry was made the sole beneficiary of the residue of Moore's estate, and was named as executor to serve without bond. After an order was entered admitting the will to probate, Ennis D. Wait and his wife, Alice B. Wait, filed in the same court an instrument purporting to be the last will and testament of George J. Moore dated August 28, 1930. On December 12, 1930, an order was made admitting the probate the last-named will and revoking that made in reference to the will in favor of Barry. Thereupon Barry challenged the validity of what might be known as the Wait will, and the court, after hearing, decided that the dated thereof had been forged, and that, in truth and in fact, it was executed in 1927. After the Barry will was reinstated, the plaintiffs instituted this suit in Marion county for specific performance.

It is the theory of the plaintiffs that Rebecca Moore made her will, giving to her husband a life estate in her property, in consideration of his promise to execute a will making her nieces the ultimate beneficiaries of his property as above stated; that the wife complied with the agreement upon her part, in that she never revoked her will; that Moore accepted the benefits under the will of his wife, and, by reason thereof, equity will compel the observance of the contract by impressing a trust upon the property belonging to Moore's estate in favor of the plaintiffs. The defendant Barry, the only defendant who has appealed, asserts that the wills made in 1906 were not made in consideration of each other nor pursuant to any contract, but were separate and independent instruments which could be revoked at any time.

From a decree in favor of the plaintiffs, as prayed for in their complaint, the defendant Barry appeals.

The decision of this case hinges primarily upon questions of fact. Did Moore and his wife enter into an agreement, express or implied, to make reciprocal wills and to name the plaintiff's as the ultimate beneficiaries of the residue of their respective estates? Did Moore accept the benefits of his wife's will made pursuant to such agreement? Is it equitable and fair that such contract be enforced? That such agreements, if established by clear and convincing evidence, will be enforced, is a rule well settled in this jurisdiction as elsewhere. Stevens v. Myers, 91 Or. 114, 177 P. 37, 2 A. L. R. 1155; Holman v. Lutz, 132 Or. 185, 282 P. 241, 284 P. 825; Schramm v. Burkhart, 137 Or. 208, 2 P.2d 14; Tate v. Emery (Or.) 9 P. (2d) 136. Also see cases collated in notes to 2 A. L. R. 1200, 33 A. L. R. 739, and 73 A. L. R. 1397.

The cases are legion involving contracts to devise and bequeath property. They may be generally grouped or classified as follows: (1) Cases wherein the wills themselves disclose a contract or agreement to make certain disposition of property. In this class of cases the wills refer to each other and generally contain a recital that each will is made in consideration of the other. (2) Cases in which the claimants assert an agreement whereby certain services of a peculiar and personal nature were rendered in consideration of a promise to devise or bequeath property. (3) Cases where the wills themselves do not refer to each other or disclose any contract, but which are nevertheless taken into consideration, together with all of the facts and circumstances surrounding their execution, in determining the existence of an alleged contract. The cause of the plaintiffs, if any exists, comes within the last-named classification.

The mere fact, in itself, that a husband and wife have made mutual and reciprocal wills, does not necessarily establish that they acted pursuant to any agreement. Mutual love and affection may well cause a husband and wife thus to dispose of their respective properties. It does not follow, however, that, because the wills in themselves do not show a contract, they will be excluded from consideration in determining whether in fact they were executed pursuant to a contract. In re Burke's Estate, 66 Or. 252, 134 P. 11; Page on Wills (2d Ed.) § 118. It is elementary that a will not made pursuant to an agreement is revocable. It is likewise well established that, if A enters into an agreement with B to make certain disposition of his property by will in consideration of B's promise to make a will, and, after complying with his part of the contract, A dies relying upon such promise, B, who has accepted the benefits of such an agreement, will not be permitted to rescind. Equity will enforce the agreement by impressing a trust upon the property of B's estate in favor of those for whom the contract was made. A promise to make a will is consideration for a promise to make a will in return. Page on Wills (2d Ed.) § 93, citing in support of the text numerous authorities, among which is Stevens v. Myers (Or.) supra.

As each case depends upon its own peculiar facts, we see no reason to analyze or review the authorities, particularly since this has been done in Stevens v. Myers, supra, and Holman v. Lutz, supra. Counsel disagree, not so much on the law as on the facts of the case.

It has been a difficult and laborious task to review the voluminous record in this case, including as it does over a hundred documentary exhibits. In this opinion we shall endeavor to discuss only those salient facts which we deem controlling, although, through the ability and industry...