Woods v. Dunn

• Decision Date: 26 September 1916
• Citation: 159 P. 1158,81 Or. 457
• Parties: WOODS ET AL. v. DUNN ET AL.
• Court: Oregon Supreme Court

159 P. 1158

81 Or. 457

WOODS ET AL. v. DUNN ET AL.

Supreme Court of Oregon

September 26, 1916

Department 1.

Appeal from Circuit Court, Benton County; J. W. Hamilton, Judge.

Suit by Winona L. Woods and husband against J. Leroy Dunn and others. Decree for defendants dismissing the suit, and plaintiffs appeal. Reversed, and decree rendered according to the prayer of the complaint.

This is a suit to enforce specific performance of an agreement alleged to have been made between Richard Dunn, deceased, and the plaintiffs, whereby he covenanted to devise to the plaintiff Winona L. Woods 200 acres of land in Benton county Or., in consideration of their promise to care for him and furnish him a home during the remainder of his life. He was 64 years of age, childless, and had been divorced from his former wife. The plaintiffs say that he was without a fixed home, and was living about from place to place without any settled habitation, although he was possessed of considerable property. His holdings in Benton county were appraised at $52,454.02 after his death. The plaintiffs allege that in the early spring of 1913 they were residing in the vicinity of Corvallis upon a farm owned by them, and that in addition to the occupation of cultivating it the husband was engaged in teaching in the public schools. Further, that about that time Dunn came to their residence and proposed to them that if they would give up their home and remove to King's Valley, take possession of a certain 200 acres of his land operate the same, and furnish him a home, nurse, cook for board, and take care of him in sickness or in health during the remainder of his life, he would convey, or transfer, the title of this land by such means as his attorney should advise, and do certain other things in the way of helping to improve the property not necessary to be here mentioned. They aver that he was advised by his attorney that the best means of accomplishing the contract on his part would be by a will and subsequently during the month of May of that year he executed in due form of law his last will and testament, whereby he devised to the plaintiff Winona L. Woods the 200-acre tract of land in consideration of the promise of the plaintiffs already mentioned. They state that in pursuance of the contract thus formed they sold their home near Corvallis, the plaintiff husband abandoned his intended career of teaching, and they removed to the land in question, took possession of the same, improved it and in every way complied with their agreement, furnished Richard Dunn with a home and cared for him attentively and completely in accordance with their covenant. Dunn died as the result of an accidental shooting on September 4, 1913. The complaint declares that later in the same month another instrument, purporting to be the last will and testament of Richard Dunn, was admitted to probate in the county court of Benton county, and that it omitted the devise to the plaintiff Winona of the 200 acres of land in question. The defendants J. Leroy Dunn, Lizzie E. Dunn, James Dunn, Madge Dunn, Ida Pruett, and Mary Pratt are heirs at law of Richard Dunn and devisees under this last-mentioned will, which bears date July 16, 1913. The plaintiffs allege that they have demanded a conveyance of the 200-acre tract which has been refused. The prayer of the complaint is to the effect that the defendants, as successors in interest of the decedent, convey the land in execution of the alleged agreement.

The contract upon which the complaint is based is denied by the defendants. The complaint is otherwise traversed in part. They rely upon the July will as a final disposition of the decedent's property. The first affirmative defense is:

"That the said alleged agreement set out in said complaint, if any such there were, was and is void because neither the said alleged agreement nor any note or memorandum thereof, expressing the consideration, was in writing and subscribed by the said Richard Dunn, or by his lawfully authorized agent, as required by section 808, Lord's Oregon Laws."

Next the defendants aver that the alleged contract was rescinded by the mutual agreement of the parties prior to Dunn's death. Of this we remark in passing there is no evidence whatever. Lastly, they declare thus:

"That at the time of said alleged agreement set out in the complaint, the lands described in the complaint were, ever since have been, and now are of the reasonable worth and value of $12,000. That at the time of said alleged agreement the said Richard Dunn was aged and in an enfeebled condition of health, and seriously ill, and at said time the expectancy of life of the said Richard Dunn, because of his enfeebled condition and poor health and sickness, was not to exceed one year. That said alleged agreement, if any such there were, was grossly unequal and harsh in its terms, and was grossly improvident on the part of said Richard Dunn, by reason of the disparity between the benefits to accrue to him from the services to be performed thereunder by the plaintiffs and their value and the value of said lands. That at the time of making of said alleged agreement, and for a long time prior thereto, the said Richard Dunn was and had been greatly enfeebled in mind and body by reason of his age and sickness and long continued excessive indulgence in the use of intoxicating liquors, and to such an extent that he was easily susceptible to the influence of others; and that if said alleged agreement was made by the said Richard Dunn, the same was procured from him by the overreaching influence and persuasion of the plaintiffs, fraudulently exerted upon the mind of said Richard Dunn while in such weakened and enfeebled condition." The affirmative matter of the answer is traversed by the reply. As matter in estoppel the plaintiffs further set forth more in detail the age and partially helpless condition of the decedent; that, owing to his afflictions and lack of culture, he was not a pleasant companion; that the defendants, who are his relatives, were unwilling to have anything to do with him; that in default of their attentions Dunn turned to the plaintiffs to supply him with the comforts of a home, which they did, and which his relatives neglected. They enlarge to considerable length on the allegations of their complaint respecting the services they rendered, and say that the defendants stood by without rendering any aid or service to Dunn, saw and without making objection permitted the plaintiffs to perform such offices and to go into possession of and remain on said land; that the plaintiffs have in every way performed their contract with Dunn; and that he received said performance to his great aid and comfort.

After a hearing the circuit court found substantially that the agreement was made as stated in the complaint; that Richard Dunn actually executed a will containing a devise to Mrs. Woods of the 200 acres mentioned, and that the plaintiffs performed their agreement for about five months, when Dunn was accidentally killed. The court, however, concluded that the services rendered might be estimated at full value liquidated in money so as to reasonably make the promisees whole, and that, in view of a gift of money previously made by Dunn to the plaintiff Winona, the services as a consideration are inadequate for the realty in dispute, and so dismissed the suit. The plaintiffs appeal.

J. K. Weatherford, of Albany, and Arthur Clarke, of Corvallis (Weatherford & Weatherford, of Albany, and McFadden & Clarke, of Corvallis, on the brief), for appellants. E. R. Bryson, of Eugene and John M. Pipes, of Portland (Yates & Woods, of Corvallis, and Woodcock, Smith & Bryson, of Eugene, on the brief), for respondents.

BURNETT, J. (after stating the facts as above).

The evidence shows, as stated, that Richard Dunn had accumulated property amounting to upwards of $52,000, and that he was childless and alone in the world. He had little to do with his relatives, and the testimony discloses that they gave him little attention. He was uncouth in his habits having lived on the frontier most of his life, and was addicted to the use of intoxicants. He had resided for a time with his nephew on lands afterwards devised to the latter by the July will, but the cookery in the family did not suit him, and he was disturbed by the noise of the nephew's little son, so that his home there was not to his liking. He had known Mrs. Woods from her childhood, and was quite fond of her. He had often visited at the home of her parents, where she showed him such attention as a little girl would render to an old man who appeared to be attached to her. She and her husband were graduates of the Oregon Agricultural College. After their marriage they taught school, and finally purchased a small tract of land adjoining Corvallis, where, in addition to the operation of their little farm, the husband had secured a situation in the Corvallis schools. They intended to make that their permanent home and pursue the career of teaching near the seat of learning already mentioned. The testimony shows that at this juncture Dunn visited them, and proposed to the wife that if she and her husband would remove to the property in dispute, some 14 miles distant, and take care of him, furnish him a home, and minister to his necessities in sickness or in health as long as he lived, he would give her the land in such manner as his attorney should advise. She told him, in substance, that she preferred to consult her husband, that they had settled on their career, and that she would not give him an answer at the time. She and Dunn both told her husband about the matter, and they consulted with him, but the plaintiffs reserved their decision for a later date. After...