Williams v. Chastain

• Decision Date: 23 March 1960
• Citation: 350 P.2d 430,221 Or. 69
• Parties: David Gorton WILLIAMS, Appellant, v. Huse CHASTAIN, Executor of the Estate of Charles R. Layton, Deceased; Ellen Greene and George L. Greene, Respondents.
• Court: Oregon Supreme Court

Page 430

350 P.2d 430

221 Or. 69

David Gorton WILLIAMS, Appellant, v. Huse CHASTAIN, Executor of the Estate of Charles R. Layton, Deceased; Ellen Greene and George L. Greene, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 9, 1960.

Decided March 23, 1960.

Eugene E. Feltz, Portland, argued the cause for appellant. On the brief were Jacob, Jones & Brown, Portland.

C. X. Bollenback, Portland, argued the cause for respondents. With him on the brief was Eugene C. Libby, Portland.

Before McALLISTER, C. J., and WARNER, SLOAN and HOLMAN, JJ.

HOLMAN, Justice pro tem.

The plaintiff David Gorton Williams brought this suit to impress a trust on all of the assets of the estate of Charles R. Layton. The defendants are the executor of Layton's estate, Huse Chastain, and the beneficiaries under his last will and testament, Ellen Greene and George L. Greene, who were, respectively, the sister and nephew of decedent. The principal asset of the estate was a note in the approximate sum of $10,000 signed by plaintiff and secured by mortgages on a home in Laurelhurst Addition in Portland and its contents.

Plaintiff and decedent had become acquainted arount 1940 while plaintiff worked as a hair stylist and decedent as a credit manager for the Bedell Company in Portland. Shortly thereafter, they took an apartment together. After a short term in the Army by decedent, they continued to live together and eventually in 1944 they purchased the home in Laurelhurst in their joint names and moved into it, together with plaintiff's mother and father. Plaintiff's mother was seriously ill and died shortly thereafter but plaintiff's father continued to live there, as long as plaintiff and decedent occupied the premises, with one absence of about a year. Plaintiff and decedent lived together until 1953, when they had a disagreement and decedent moved out and plaintiff and his father remained.

Immediately after taking up their abode together, they commenced acquiring household effects among which were many antiques and reproductions which were apparently quite valuable. During the latter part of their relationship the contents of the home were appraised for fire insurance purposes in the approximate amount of $40,000, though there is no indication that anything like this amount was paid for them. They paid $11,500 for the home but it was mortgaged to the extent of some $9,000. They pooled and commingled their earnings and from time to time had a joint bank account. In November of 1945, they drew wills in which, except for small bequests to relatives, they left their estate to each other and in case of death of both through a common accident, their estates were to be divided equally between two of plaintiff's and two of decedent's relatives.

The pertinent part of decedent's will was as follows:

'IV

'I give, devise and bequeath unto my good friend and life-long companion, David Gorton Williams, all of the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possessed or to which I may be entitled at the time of my decease.

'V

'* * * My reason for this Will is to make sure that the property being accumulated by my life-long friend, David Gorton Williams, and me, is left to him in the event of my death or divided among our mutual heirs in the event we should meet our demise at one and the same time. Because of this common interest we enjoy in the home we own together and the many pieces of art we have collected therein, this Will is being made so that we each may be sure to enjoy the fruits together in line with the mutual Wills we have made and so that the survivor may have the use of our estate for his lifetime and dispose of it as he sees fit.'

The plaintiff's will was identical in these respects with decedent's except the decedent was the beneficiary.

At the same time, the parties executed an agreement concerning their wills which was as follows:

'This Agreement made this 6th day of November, 1945, by and between David Gorton Williams, Party of the First Part, and Charles R. Layton, Party of the Second Part.

'--Witnesseth:----

'That, Whereas, the Party of the First Part and the Party of the Second Part have this day each made Wills leaving their jointly held property to each other, and

'Whereas, it is the desire of both the First Party and the Second Party that the other party take all of their jointly held estate in the event of either's death.

'It Is Therefore Agreed, that in the event either party desires to revoke or destroy his will, he will not do so without full consent and agreement of the other.

'Now, Therefore, in consideration of each having made his Will as stated above and of this agreement and execution thereof, we have devised and bequeath all of our property to each other and in consideration of such devise and bequest in the event of each other's death, we hereby agree that if either of us desire to change our Wills, we shall notify the other party by a registered letter.'

Plaintiff's and decedent's relationship was apparently a stormy one at times. The record indicates there were a series of disagreements, sometimes somewhat violent, and several times decedent moved from the premises but they would subsequently make up and decedent would return. In 1953 they had a final parting and decedent moved out and did not return.

After decedent's removal in 1953 from the home, he executed a new will on April 9, 1954, revoking the will in favor of plaintiff and leaving all of his property to the defendants Greene, his sister and nephew. There is no evidence that he notified plaintiff of his plans to revoke his will. Thereafter, on April 20, 1954, decedent sold his interest in their joint property, both real and personal, to plaintiff for the sum of $10,000 payable at $50 per month without interest. He gave a bill of sale and deed to the plaintiff and took back mortgages on both the real and personal property to secure payment of the money. Decedent died on November 7, 1955. Plaintiff introduced his will in favor of decedent into evidence and testified it was still in effect, had never been revoked, and that he had no notice until after decedent's death that decedent had revoked his will in favor of plaintiff. Plaintiff now brings this suit to impress a trust on the assets of decedent's estate, claiming he had an enforceable contract with decedent requiring decedent to leave all of his property to him.

Defendants have three principal contentions in defense. First defendants contend that the wills and contract when construed together result in an ambiguity because it is not clear whether plaintiff and decedent intended that all of their property should go to the other or just their joint property, and that if all the facts and circumstances concerning the relationship of the parties and the documents themselves are construed together it was the intention of the parties that the wills should only act upon their joint property. There being no joint property at the time of death, they claim there was nothing for the will to act upon.

Second, defendants also contend that a contract to keep mutual wills in effect can be revoked by either except where one party has accepted property by the will of the other who has predeceased him.

Third, defendants contend the contract and the wills were the result of undue influence practiced by plaintiff upon decedent.

The first point of inquiry concerns whether plaintiff and decedent had a contract concerning only their jointly held property or all of their property. There can be no doubt from recitations in the written instruments and the testmony of the witnesses that there was a contract between them for mutual wills.

Many loose comments concerning the irrevocability of mutual wills have resulted in the cases and legal treatises from the failure to distinguish between contracts to make wills and the wills themselves and the rules applicable to each. See Ankeny v. Lieuallen, 169 Or. 206, 216, 113 P.2d 1113, 127 P.2d 735; and Estate of Engle, 129 Or. 77, 82, 276 P. 270, as illustrations of this. Contract rules have been applied to wills and the law of wills to contracts with much resultant confusion. There is no such thing as an irrevocable will. This has now been made clear by the subsequent cases of Irwin v. First Nat'l Bank, 212 Or. 534, 321 P.2d 299; and Van Vlack v. Van Vlack, 181 Or. 646, 665, 182 P.2d 969, 185 P.2d 575, which have returned to the rule laid down in In re Burke's Estate, 66 Or. 252, 256, 135 P. 11. Also see Gardner on Wills (2d ed.) ch. IV, p. 64, § 19. In the case of Irwin v. First Nat'l Bank, supra, Mr. Justice McAllister speaking for the Court stated as follows at page 540 of 181 Or., at page 303 of 321 P.2d:

'The above quotation states the rule accurately except for that portion which says that 'the will of the survivor becomes irrevocable,' which portion was probably not meant literally. This court has...