Willbanks v. Goodwin

• Decision Date: 07 December 1984
• Citation: 70 Or.App. 425,689 P.2d 1004
• Parties: Will Charles WILLBANKS, Respondent, v. James O. GOODWIN, Personal Representative of the Estate of Lillian C. Willbanks, Lavonne Mars, Ember Mars, Amber Mars and Angel Mars, Appellants. 82-9-385; CA A29651.
• Court: Oregon Court of Appeals

Page 1004

689 P.2d 1004

70 Or.App. 425

Will Charles WILLBANKS, Respondent, v. James O. GOODWIN, Personal Representative of the Estate of Lillian C. Willbanks, Lavonne Mars, Ember Mars Amber Mars and Angel Mars, Appellants.

82-9-385; CA A29651.

Court of Appeals of Oregon.

Argued and Submitted June 11, 1984.

Decided Oct. 24, 1984.

Reconsideration Denied Dec. 7, 1984.

Ferris F. Boothe, Portland, argued the cause and submitted the briefs for appellants.

Stanley D. Gish and Stephen F. Crew, Portland, argued the cause for respondent. With Stephen F. Crew on the brief were O'Donnell, Sullivan & Ramis, Portland.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

WARDEN, Judge.

This is an action for specific performance of an oral contract allegedly made in connection with the execution of reciprocal wills by Charles Willbanks, Sr. and Lillian Willbanks and for imposition of a constructive trust on the net assets of the estate of Lillian Willbanks. The issues are whether plaintiff's complaint was time barred and whether the alleged contract had been established and should be specifically enforced. We review de novo, ORS 19.125(3), and affirm.

The relevant genealogical history is as follows: Charles Willbanks, Sr. and Lillian Willbanks had one child, Charles, Jr. Charles, Jr. and his wife, Lorraine, had two children, Will Willbanks and LaVonne [Willbanks] Mars. Will is the father of three children--Amy, Sally and Wanda Willbanks. LaVonne is the mother of three children--Amber, Ember and Angel Mars. Will is the plaintiff in this action; defendants are the personal representative of the estate of Lillian Willbanks and LaVonne Mars and her children.

Charles Willbanks, Sr. died testate on December 21, 1968. His will, dated December 8, 1959, contained the following dispositive provisions:

"SECOND, I hereby give, devise and bequeath unto my son, Charles Richard Willbanks, the sum of Fifty ($50.00) Dollars.

"THIRD, I hereby give, devise and bequeath all the rest, residue and remainder of my property, both real, personal and mixed unto my wife, Lillian C. Willbanks.

"FOURTH, In the event my said wife, Lillian C. Willbanks, predeceases me, then and in that event, I hereby give, devise and bequeath all my property both real, personal and mixed unto my two grandchildren, to-wit: LaVonne May Mars, now residing at Clackamas, Oregon; and Will Charles Willbanks, now residing with his parents at Route 3, Oregon City, Oregon, in equal shares."

Pursuant to the terms of that will, Lillian Willbanks took all of Charles Willbanks, Sr.'s estate, except the $50 gift to Charles, Jr. Lillian died testate on May 15, 1981. Her will dated July 18, 1978, made the following disposition of her estate:

"THIRD: I give the sum of $10,000.00 to my trustee hereinafter named, in trust for the following purposes:

"(a) Said trustee shall hold said trust, and pay therefrom to my son, Charles Willbanks, no more than $125.00 per month, including both principal and interest. In the event of the death of my son, Charles, the trust shall be paid out by my trustee at the same rate of not more than $125.00 per month to my daughter-in-law, Lorraine Willbanks * * *.

"(b) Said trustee may sell, convey, transfer, invest, or may borrow money, pay debts, compromise, settle, waive or sue on claims, and do everything and anything necessary in the management of said trust as fully as I could do myself * * *.

"FOURTH: I give my home, household goods, farm of 47 + acres and including tools, implements and equipment of every type located at Carus, on Highway 213, Clackamas County, Oregon, to my trustee hereinafter named, in trust for my granddaughter, LaVonne Mars, and her three daughters, Ember, Amber and Angel, a one-quarter share each, with the right of representation in each case. The personal property on the farm, and the use and possession of the land and improvements shall be immediately delivered to such beneficiaries in equal shares. My trustee shall simply hold title to the farm, so that there shall be no sale of the farm nor any portion thereof prior to the 25th birthday of LaVonne Mars' youngest daughter. LaVonne and her daughters may manage and maintain the farm as they see fit until legal title is delivered to them.

"Immediately when LaVonne Mars' youngest daughter attains the age of 25 years, the farm title portion of the trust shall be distributed to LaVonne Mars and her three daughters, Ember, Amber and Angel, a one-quarter share each, with the right of representation as to LaVonne and the three great granddaughters; otherwise equally among the survivors of this class of four.

"FIFTH: I hereby instruct my personal representative to sell all my rental properties, and other assets, to liquidate the same, and all the said residue of my estate, wheresoever situate of which I may die seized or possessed, or to which I may be entitled at the time of my death, I give in equal shares to be divided among my two grandchildren, LaVonne Mars and Will C. Willbanks, and my five great grandchildren, Ember, Amber and Angel Mars, and Amy and Sally Willbanks, with the right of representation of any who might predecease me * * *."

A codicil of August 26, 1980, amended the third paragraph with the following explanation:

"Paragraph Third shall read as follows:

"THIRD: I give the sum of $100.00 each to my son, Charles Willbanks, and to his wife, Lorraine Willbanks.

"I make this change in my will for the reason that both my late husband, Charlie, and I have, since his death, made rather constant and substantial outlays of monies and property to my son and wife, or on their behalf."

Probate of the estate of Lillian Willbanks commenced on May 22, 1981. Notice to interested persons pursuant to ORS 133.155 was first published on June 2, 1981. On August 18, 1982, plaintiff filed in the probate proceedings his "Claim of Will Charles Willbanks against the estate of Lillian C. Willbanks," alleging entitlement to one-half of the estate as an heir under mutual reciprocal wills executed by Lillian and Charles Willbanks, Sr., and allegedly made pursuant to an oral agreement as to the disposition of their respective estates. That "claim" initially was presented to the executor, who disallowed it on August 31, 1982. On September 23, 1982, plaintiff filed this action for specific performance of the alleged contract and for imposition of a constructive trust on the assets of Lillian's estate. After a trial to the court, judgment was entered in favor of plaintiff. This appeal followed.

Defendants' first two assignments of error are the trial court's denial of their motion to dismiss plaintiff's complaint on the ground that it was time barred under ORS 115.005 and its granting of plaintiff's motion to strike defendant's affirmative defense of the statute of limitations. The assignments raise the same legal issue of the applicability of ORS 115.005, and we discuss them together.

The initial issue for our determination is whether an action for specific performance of an oral contract to make a will is a "claim against the estate of a decedent" within the purview of ORS 115.005:

"(1) Claims against the estate of a decedent, other than claims of the personal representative as a creditor of the decedent, shall be presented to the personal representative.

" * * *

"(3) If notice to interested persons is published, claims not presented before the expiration of 12 months after the date of the first publication of notice to interested persons, or before the date the personal representative files his final account, whichever occurs first, are barred from payment."

A similar problem of statutory construction was considered by the Supreme Court in Harris v. Craven, 162 Or. 1, 91 P.2d 302 (1939). In that case, the plaintiff sought specific performance of an alleged oral promise to bequeath property. Defendants argued that the plaintiff had failed to meet the evidentiary requirements of § 11-504, Oregon Code 1930, which provided in part:

"No claim which shall have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, referee or jury, except upon some competent, satisfactory evidence other than the testimony of the claimant."

The court noted that, if the plaintiff's evidence of an oral contract were true, the decedent's property devolved to the plaintiff upon the decedent's death, and the executor named in the purported last will held it in trust for the plaintiff. It concluded that such a claim to the estate was not within the contemplation of statutes such as the above, which referred only to pecuniary demands that the personal representative could satisfy out of the general funds of the estate. Therefore, because the claim was not one which the executor could approve or disapprove, plaintiff was not required to submit it to him; accordingly, § 11-504 was inapplicable, and the plaintiff did not need to present corroborating evidence. 162 Or. at 18-19, 91 P.2d 302.

Although Harris v. Craven, supra, dealt with an evidentiary statute rather than a statute of limitation, the theoretical basis of that decision is pertinent to the issue before us. The rationale of Harris v. Craven, supra, is that a potential legatee's assertion of a right to take from an estate is not subject to the statutory requirements applicable to a creditor presenting a pecuniary claim against an estate. Applying that reasoning here, we conclude that an action for specific performance of a contract to make a will brought by a third party beneficiary of that contract is not a "claim against the estate of a decedent" within the meaning of ORS 115.005. Rather, the plaintiff in such an action is claiming title to the assets of the estate, and thus may bring an action without first presenting a claim against the estate of the personal representative.

We have not overlooked defendant's contention that the probate code was substantially revised in 1969, after Harris...