*1 6, Argued as modified June March affirmed deceased, KRUEGER, EDA OF MARTHA ESTATE al, Respondents, et Appellants. ux, et ROPP 25375) (No. 31241, SC 579 P2d *2 Weatherford, M. Albany, argued Harrison him on the briefs were cause for With appellants. Weatherford, Horton, Powers, & Thompson, Brickey P.C., Albany. Emmons, argued
C. S. cause Albany, Emmons, him on the brief were With respondents. Kyle, Albany. & Kropp Kryger, Justice, Lent, Denecke, Bryson,
Before Chief Justices, Justice Tempore. Pro Joseph,
BRYSON, J. Lent, J. concurring part; dissenting part. BRYSON, J. sole benefi-
Plaintiffs, personal representative brought Eda Krueger, of the estate of Martha ciary deeds, set aside to two separate parcels this suit to to enforce land, to defendants from decedent-vendor a land sale contract between terms of two the same defendants-purchasers parcels. an had they contended and alleged which provided
oral contract with decedent for deced- certain services defendants would perform money for which the balance of exchange ent in decedent’s contract would be cancelled at the land sale to defendants death and the would be devised had they clear. Defendants contended that free and and prayed their part bargain fully performed and de- dismissing complaint for a decree plaintiffs’ decedent and the land sale contract between claring declared to be in full and that of any in fee of the real free and clear owners property, *3 of the plaintiffs. claims contract, decedent
After into the land sale entering in executed two deeds favor of defendants that of land. The court decreed two trial parcels parcels [two] defendants held "the record title to said * * * in trust for the benefit of real property decedent, Krueger, of Eda Martha legatees heirs of beneficiary Ethel Wold is the sole and that plaintiff * * fixed The trial court also said estate sale contract due defendants on the land amount the defendants.1 the same to be paid by and ordered Defendants appeal. On follows. of the facts is as summary
A brief died testate 25, 1976, Krueger Eda Martha February decedent intended decreed as the "reward” 1 The court also not have would that defendants compensate defendants for their services decided The court under the land sale contract. pay interest due certain services. adequate payment defendants’ would be that this interest portion the decree. cross-appealed of from Plaintiffs have not at age years, leaving Ethel Wold as plaintiff the sole of her beneficiary estate. Decedent was a maiden and lived on a lady tract of farm land Benton County which she had inherited from her We have reviewed parents. all of the testimony exhibits. The trial court made written findings facts, and we reach the same conclusion and adopt from those following findings. 5,1968,
"1. On November the deced- Defendants and Krueger ent entered into a written land sale contract wherein Defendants purchased parcel one of land of $9,000, approximately nine acres for and a five year at option, per year, approximately $50 to purchase $1,000 $1,000 at per paid fifteen acres acre. down upon execution. Interest at the rate of five was to percent paid unpaid on the balance. Title was to be delivered upon payment full. The seller had an to tender option any a deed at time if executed a purchaser promissory note secured aby mortgage or trust deed. Defendants agreed pay taxes on the parcel. first 11, 1970,
"2. On June delivered a Warranty Deed to the parcel Defendants for the first $9,000 that reciting was the true and actual considera- tion. The evidence establishes the Deed was purpose enabling delivered for the financing building obtain for the erection of a residence property. on the February
"3. On exercise decedent without Defendants, of the option Warranty delivered a Deed for the option to Defendants under the reciting that the true and actual consideration $16,000.
* * * * "5. The is the deced- testimony uncontradicted that ent refused to sign [acknowledging payment] promis- note, otherwise, sory Plaintiffs’ Exhibit which death, she would her title to the two upon *4 parcels pass of land would to the Defendants free of unpaid balance.
* * * * [sic] "7. Defendant’s version of the oral contract with alleged bequeath the decedent is an contract to [476] the time at of purchase due on the two contracts balance was not This contract the decedent. oral death of writing. evidence, to nor reduced by established * * [*]
"‡ if: [*] [*] [*] is option The balance due under the contract
"10. unpaid, if $15,800, parcel, taxes on the first plus fees to date."* * * * *." option finding, the above substantial support
We find to did not establish an oral that defendants the land the balance extinguish bequeath follow- death, from the decedent’s sale contract upon an their attorney prepare Defendants had facts. ing which provided for decedent’s signature instrument Eda M. to would render certain services that instrument her lifetime. This dining Krueger a note -, 1972,” and denominated dated "May $24,947.30 as the defendants owed showing contract, including on the land sale the balance This instru- the additional 15 acres. to option pinchase is hereby "This note shall be and ment then provided, Eda M. in full the death upon declared to be this instrument Defendants presented Krueger.” the same. sign the decedent but she refused instrument took the copy proposed testified attorney decedent’s then attorney. "she but with decedent he discussed the instrument final make a ready said that she wasn’t [decedent] with Mr. arrangement Ropp.” of suit causes first argue plaintiffs’ Plain not permitted. and therefore were inconsistent However, suit. three causes of stated tiffs’ complaint dowe trial, and this issue at did not raise states it As as a long complaint here. not consider sufficient action, considered it will be cause of at the was not attacked the complaint where appeal 385-86, v. Gourley, level. State trial court Savings v. Prudential (1957); Holmberg P2d 1117 P 943 Ass’n, 1, 9-10, & Loan *5 Defendants’ next on principal argument establish is that the evidence was sufficient to appeal the oral to the a valid contract balance forgive sale at decedent’s death. This is equiva- land contract real to or the bequeath lent to an oral contract devise or the balance due thereon at decedent’s property death.
An or bequeath oral contract devise concise, clear, convincing must be proved by P2d Paulson, 88, 91, v. 241 Or 404 evidence.2 Paulson (1965); Hewitt, P2d 399 242, 244, 417 244 Or 199 Gill v. (1966). clear evidence’ convincing "[P]roof highly the truth of the facts asserted is means P2d 513, 527, 214 330 Michael, Cook v. Or probable.” 257 Or Systems, v. B&B Personnel (1958); 1026 Sheets (1970). the above 145, Based on 135, P2d 968 475 the failed we conclude that findings, the oral their burden of and did not proof establish as contract contended. the trial
Thus,
the
that remained for
only question
and nature of consideration
court
the amount
sale
The trial court
found that
the land
be paid.3
the
to be
contract determined
amount of consideration
novo, we
we review
cases de
paid. Although
equity
1974,
1,
January
after
be set out or
2 Such contracts made
must
writing signed by
or
the decedent to
expressly
in the will
be in
referred to
provides:
112.270
be enforceable. ORS
"(1)
devise,
or
a will
A
to make a
or not to revoke
will or
1974,
devise,
intestate,
1,
be
January
shall
or
die
after
executed
only by:
established
"(a)
contract;
stating
provisions
of a will
of
Provisions
material
"(b)
and extrinsic
express reference
to a contract
An
in a will
contract;
proving
evidence
the terms of the
"(c)
evidencing
contract.
writing signed by
A
the decedent
<<*****”
69,
Wilson,
77,
(1976),
v.