Van Vlack et al. v. Van Vlack

• Decision Date: 01 July 1947
• Citation: 185 P.2d 575,181 Or. 646,182 P.2d 969
• Parties: VAN VLACK ET AL. <I>v.</I> VAN VLACK
• Court: Oregon Supreme Court

181 Or. 646

182 P.2d 969

185 P.2d 575

VAN VLACK ET AL.

v. VAN VLACK

Supreme Court of Oregon.

Argued May 5, 1947.

Affirmed July 1, 1947.

Rehearing denied October 8, 1947.

Wills — Revoking contractual will

1. The principle that the subsequent conveyance of land specifically devised revokes pro tanto the will did not apply to will revoking an allegedly contractual will.

Wills — Presumption — Destruction — Control — Repository

2. The strength of the presumption or inference that testator had destroyed will not found in place to which testator had access depends upon the control which the testator possessed over the repository and the access which others had to it.

Wills — Presumption — Destruction — Revocation

3. Proof that decedent lodged will in a repository to which no one had access without use of his key and that it was seen in repository upon at least one later occasion and that the will was not found there after decedent's death, raised the presumption that the decedent had destroyed and revoked the will.

Evidence — Presumptions — Inferences

4. Presumptions are creatures of the law and have whatever strength or cogency the law gives to them, but the strength of inferences is based upon the human experience which lies back of them.

Wills — Revoked — Executor — Evidence admitted

5. Where issue was whether will not found in testator's safe deposit box had been revoked and such will named a certain person as executor, testimony that shortly before his death, testator reminded such person that he was his executor, was properly admitted.

Wills — Presumption overcome

6. The presumption that testator destroyed will which was not found in testator's safe deposit box after death, was overcome by the evidence, which showed that will had not been revoked.

Wills — Revocable

7. In a probate court, all wills are deemed revocable.

Wills — Contractual will — Probate

8. A contractual will cannot defeat the probate of a subsequent will revoking it even though contractual will had erroneously been admitted to probate.

Wills — Revoked will — Evidence of contract

9. It is no objection to the probate of a will that it violates an agreement or revokes a former will made in pursuance of it but the revoked will may stand as evidence of the contract.

Wills — Contract irrevocable — Will revocable

10. A contract to make a will when based upon sufficient consideration is irrevocable although the will which was executed pursuant to it remains revocable.

Wills — Rights under contract

11. Where allegedly contractual will was revoked by a later will, the probating of the later will was proper although allegedly contractual will had been erroneously probated and any rights under alleged contract must be sought in a different proceeding. O.C.L.A. §§ 19-201, 19-202.

                  See, note, 69 A.L.R. 14; 21 Am. Jur. 496, 888; 68 C.J., Wills
                § 760, 87 A.L.R. 1232; 50 Am. Jur. 256; 21 C.J.S., § 517
                

Appeal from Circuit Court, Union County.

R.J. GREEN, Judge.

George T. Cochran (Cochran & Eberhard, of La Grande, on brief) for appellant.

W.F. Brownton, of La Grande, for respondents.

Before ROSSMAN, Chief Justice, and LUSK, BELT, HAY and WINSLOW, Justices.

AFFIRMED.

ROSSMAN, C.J.

This is an appeal by Edward B. Van Vlack, proponent of a will executed by Hiram Lieurance, deceased, November 12, 1943, from a decree of the circuit court, sitting as a probate court, which held that (1) that will was not the last will and testament of the deceased; (2) it was revoked by another will executed by the deceased October 16, 1944; (3) the latter was the last will and testament of the deceased; and (4) the will of October 16, 1944, should be admitted to probate as the last will and testament of the decedent. At the time of his death, June 11, 1946, Hiram Lieurance was a resident of Union County and was 92 years of age. The will signed by him November 12, 1943, devised his entire estate to Edward B. Van Vlack, the appellant. The will of October 16, 1944, which the attached decree holds to be the last will and testament of the decedent, made as its beneficiaries Charles E. Lieurance, Charles David Van Vlack and Edward Evert Van Vlack, the respondents. The latter, as well as the appellant, were nephews of the decedent.

No one questions the testamentary capacity of the deceased, nor does anyone suggest that any improper means were employed in procuring the execution of either of the aforementioned wills. The appellant claims that the instrument which he submitted was a contractual will. The one which was executed October 16, 1944, has not been found, and the appellant argues that the circumstances require a conclusion that the decedent destroyed and revoked it. Pursuing further his contention that the will of November 12, 1943, was contractual, the appellant urges that the will of October 16, 1944, was executed in violation of the purported contract and that, therefore, it should not have been admitted to probate. We shall refer to the will upon which the appellant relies as the 1943 will, and to the one upon which the respondents rely as the 1944 will. The latter contains a revocation clause.

As we said, the testator died June 11, 1946. Seven days later the appellant offered for probate in the county court for Union County the 1943 will. An order was entered June 18, 1946, admitting that will to probate in common form and appointing the appellant executor. June 20, 1946, the respondents filed a petition in the county court which challenged the 1943 will as the deceased's last will and which offered for probate the 1944 will. That will nominated as executor L.H. Bramwell. The appellant replied to the petition filed by the respondents with an answer averring that the decedent executed the 1943 will in performance of an oral contract which he and the decedent effected in November of 1943, whereby it was agreed that the deceased would bequeath to the appellant his entire estate in consideration of the appellant and his wife "taking said decedent into their home and furnishing him a place to live in their home and waiting upon, nursing and taking care of him and furnishing him with the necessaries of life for the balance of his lifetime." The answer declared that the appellant and his wife faithfully performed their part of the agreement and that the decedent, in the performance of his promise, (1) executed the 1943 will, and (2) executed and delivered to the appellant and his wife a deed which conveyed to them all of his realty. The answer charged that because of the above circumstances the will upon which the respondents rely was null and void.

After the answer had been filed, the respondents moved for an order to strike from it the parts above reviewed on the ground that they did not constitute a defense to the probate of the 1944 will. At that juncture the county court, acting upon a motion made by the appellant, and obedient to § 13-502, O.C.L.A., transferred the proceeding to the circuit court. The latter sustained the respondents' motion. After a trial in the circuit court, which showed that both wills were duly executed and published, the decree was entered from which this appeal was later taken.

The appellant submits four assignments of error. They are:

1. "The Court erred in striking out the part of appellant's answer relating to the contract between appellant, Edward B. Van Vlack, and decedent, Hiram Lieurance."

2. "The Court erred in not finding that the testator, Hiram Lieurance, and appellant, Edward B. Van Vlack, entered into an oral contract about November 12, 1943, whereby appellant agreed to take testator into his home and care for him for the remainder of his life, in consideration of the testator bequeathing to appellant all of his property."

3. "The Court erred in admitting the alleged will of Hiram Lieurance, dated October 16, 1944, to probate, appointing L.H. Bramwell executor thereof, directing all property to be delivered to him and allowing contestants their costs and disbursements and in not holding said alleged will revoked, null and void."

4. "The Court erred in decreeing the will of Hiram Lieurance, dated November 13, 1943, revoked and of no force or effect, and in revoking the Letters Testamentary of Edward B. Van Vlack and in not decreeing said will to be valid and confirming said Letters Testamentary and in permitting contestants any costs."

Mr. E.M. Sabin, an attorney who maintains his office in Union, prepared both of the above-mentioned wills. According to Mr. Sabin, the decedent came to his office October 16, 1944, accompanied by Mr. Roy Lay, who became one of the attesting witnesses to the 1944 will, and presently said to Mr. Lay: "I wish you would stay here and hear what I have to say, and witness my will, because I am going to make a new will and I want you to witness it." Next, he spoke to Mr. Sabin in the following vein: "I want to draw a will that Edward B. Van Vlack cannot break. Can you do it?" After an affirmative reply had been made, the directions for the will of October 16, 1944, were given. Mr. Sabin testified that he inquired of his client for the will which was signed in November, 1943, and was told that "he didn't have the November, 1943, will because he said Ed. Van Vlack got hold of it and wouldn't give it back to him. He said he asked him for it and couldn't get it." After Mr. Sabin had indicated that thirty minutes would be consumed in the work of typing the will, the decedent and Mr. Lay retired from the office. Later they returned and after the will had been read it was duly executed and published. The attesting witnesses were Mr. Lay and Mr. Sabin. Following the signing of the will, the decedent took it into his possession and said to Mr. Sabin: "I want you to go with me to the bank. I want to deliver it to Bramwell." Mr. Bramwell was the manager of the Union Branch of the First National Bank of Portland, and the decedent had frequently gone to him for advice. When the two...