Tiggelbeck v. Russell

• Decision Date: 20 December 1949
• Citation: 213 P.2d 156,187 Or. 554
• Parties: TIGGELBECK v. RUSSELL et al.
• Court: Oregon Supreme Court

213 P.2d 156

187 Or. 554

TIGGELBECK v. RUSSELL et al.

Supreme Court of Oregon.

December 20, 1949

[Copyrighted Material Omitted]

Frank S. Senn, of Portland, and Blaine Hallock, of Baker, argued the cause for appellants, on the brief were Senn, Recken & Recken, of Portland, an Hallock, Donald, Banta & Silven, of Baker.

George T Cochran, of La Grande, argued the cause for respondent, on the brief were Cochran & Eberhard, of La Grande.

Before LUSK, C. J and BRAND, BAILEY, HAY and PAGE, JJ.

HAY, Justice.

This is a suit for relief in the nature of specific enforcement of an oral contract to devise and bequeath property in consideration of the performance of personal services by the promisee for the promisor. It seeks to have certain real and personal properties and moneys, comprising the estate of Imogen Elinore Russell, deceased, impressed with a trust in the hands of the defendants in favor of plaintiff Marie Tiggelbeck. The defendant Erma D. Russell is the administratrix of the estate of said decedent, and the other defendants are decedent's heirs at law.

For brevity, we adopt the language of the parties themselves, and refer to decedent as 'Imogen' and to the plaintiff as 'Marie'.

The complaint alleges that Imogen died on June 4, 1947; that she left an estate in Union County, Oregon, of the appraised value of some $30,000; that, in her lifetime, she and Marie were teachers in the La Grande public schools, and had formed 'a mutual and sisterly love and affection for each other'; that neither had any close companionship with her relatives; that, from 1924 until 1942, Marie was a roomer and boarder at Imogen's home; that, in the latter year, Marie contemplated resigning from her teaching position and leaving La Grande to seek employment in some war industry, where she could secure higher wages; that, by reason of the love and affection existing between Marie and Imogen, such contemplated move on the part of Marie greatly disturbed Imogen, and, after much negotiation, an oral contract was entered into between them whereby, in consideration of their mutual promises, it was mutually agreed between them that Marie would abandon her intention of resigning from her teaching position; that she and Imogen would continue to teach, and, at the proper time, retire together from such work; that they would live and associate together as companions in love and affection as sisters, sharing the privileges and responsibilities of a home; that they would give mutual aid and assistance to each other, and divide equally their ordinary expenses of living, using the property of Imogen in which to live, with rent of ten dollars a month to be paid by Marie to Imogen, which sum was considered as bein one-half of such rent chargeable to both parties; that each of them would make a will leaving all of her property to the other; that Marie fully performed said contract on her part (alleging the acts constituting such performance in considerable detail); that each of the contracting parties made her will in favor of the other, but that such wills did not comply with the requirements of the Oregon statute of wills, and were, therefore, invalid; that, at the time of Imogen's death, Marie was living in Imogen's home and was in possession thereof; that, by reason of Imogen's will being inoperative, said contract has been breached; that Marie has no plain, speedy or adequate remedy at law for such breach, and is entitled to have said contract specifically performed.

The heirs at law and the administratrix, appearing separately, answered the complaint by general denial.

The court, after a hearing, on February 15, 1949, entered its decree in favor of plaintiff, in accordance with the prayer of her complaint. The defendants have appealed.

The evidence discloses that Marie came to La Grande as a school teacher in the year 1923, and, in 1924, became a roomer and boarder in the home of Imogen's parents, in which home Imogen resided. Imogen's father died in 1931 and her mother in 1934. Upon the death of her mother, Imogen acquired a life estate in the Russell home property, which she occupied thereafter until her own death. Imogen was thrifty and industrious, and, with the assistance of a cook-housekeeper, she kept roomers and boarders from the time of her mother's death until July, 1942. At that time her cook-housekeeper left her employ, and she was unable to find another. She thereupon quit taking boarders but continued taking roomers.

At about that time, Marie was planning to abandon her teaching career and take up some form of war-production work. During Marie's eighteen years' residence as a roomer and boarder in the Russell home, she and Imogen had become greatly attached to each other. Imogen was much disturbed at the thought of Marie's leaving, and told a number of friends that she did not know how she would get along without her. Marie thus describes the formation of the alleged contract in suit:

'A. Well, Ella [the cook-housekeeper] had been with us since 1934, seven or eight years; and naturally Imogen was quite upset about Ella's going, and it affected her greatly, and after she left why she just didn't want me to leave; and I know we discussed it--'Well,' she said, 'Marie, don't leave me. I have no one. I don't know what I'll do if you go.'

'Q. In discussing that, state whether or not you and Imogen arrived at an agreement? A. Yes, we came to this understanding, and----

'Q. Just a minute. What was the conversation that was given between you and her, relative to that agreement, and when did it take place? A. Relative to the agreement?

'Q. Yes. A. Well, I can't recall the exact words. I know when Ella left we discussed the situation, and I wanted to go, leave La Grande, but she had roomers, and of course Ella--We had roomers and boarders, and Ella did the cooking, and she couldn't; she couldn't get another housekeeper. She said she didn't want another housekeeper; and anyway, couldn't get a housekeeper at that time. They 'most all went into war work. That was relative to the understanding, to the----

'Q. Yes; what did she say to you relative to an understanding? A. Well, she said, 'Marie, if you stay here and help me, I will leave you all my property. I will leave you everything I have.' I think those were her words.

'Q. When did that occur? A. That must have been--It was after Ella left. It was the first part of August; sometime in the first part of August.

'Q. Where? A. It was in the--at the breakfast table.

'Q. Who was present? A. Just Imogen and I were present.

'Q. What did you say to her in answer to that? A. Well, I said, 'Imogen, I just don't know.' I said I would just have to think it over, about giving up war work. Or course I hated to leave here [her] too, because she was so upset about Ella, and she really had no one to turn to. She had no one there to really help her, and didn't want to be left alone.

'Q. Did you give consideration to that offer of hers? A. Yes, I thought about it.

'Q. Afterwards, what did you tell her? A. I told her, 'Imogen, I will stay here and help you.' I just said, 'After all, I know that you have no one; and I know you don't want to be left alone.'

'Q. And what other propositions were made relative to your making a will? A. What was that, please?

'Q. What other propositions were made, relative to your making a will? A. Well, we discussed that a little later. It wasn't at that meeting at the breakfast table. We talked about our war bonds, and co-signing them, and we did; and I talked to her, and said, 'Well, I'll leave you what I have.' And she said she would make out a will; and I made out a will later.'

Up to that time, Marie had been paying $30 a month for room and board. Thereafter, she paid only $10 a month for room rent, and she and Imogen divided the household expenses between them. Marie did most of the cooking and housework. She was bout ten years younger than Imogen, and the latter was devoting most of her spare time to planning and constructing improvements both to the Russell home property, in which she had only a life estate, and to other property, of which she owned the fee. It is evident that the two ladies lived together as a family. They purchased war bonds in their joint names, with right of survivorship, and each attempted to make a will in favor of the other. There is no question but that a very sisterly affection grew up between them, and that they were happy in their association.

Our inquiry must be devoted to whether or not the existence of the alleged contract, and the due performance thereof, have been established by evidence of the character which the law requires in such cases.

A considerable body of case law has accumulated in Oregon in respect of cases of oral contracts to devise or bequeath property in consideration of personal services to be performed by the promisee. Such contracts are lawful, and, when the existence thereof and breach by the promisor are properly established in evidence, and no adequate remedy is available at law, courts of equity will grant relief. Kelley v. Devin, 65 Or. 211, 132 P. 535; Woods v. Dunn, 81 Or. 457, 159 P. 1158; Popejoy v. Boynton, 112 Or. 646, 229 P. 370, 230 P. 1016; Traver v. Naylor, 126 Or. 193, 268 P. 75; Vandiver v. Stone, 149 Or. 426, 41 P.2d 247; Stever v. Holt, 164 Or. 195, 100 P.2d 1016; Hunter v. Allen, 174 Or. 261, 147 P.2d 213, 148 P.2d 936; Benson v. Williams, 174 Or. 404, 143 P.2d 477, 149 P.2d 549.

'There can be no doubt but that a person may make a valid agreement binding himself legally to make a particular disposition of his property by last will and testament. The law permits a man to dispose of his own property at his pleasure, and no good reason can be assigned why he may not make a...