*1 hаrder on the ciency can be judgment, ever was. than strict foreclosure
debtor debtor surplus to be returned mirage; the de- glittering
after sale is reality. given
ficiency judgment buys at the person who
Furthermore ten, is not today, nine times out
sale hero, purchaser for good faith
our
value, security in- but the holder of by a pays not in cash but who
terest against debt.8
credit
Finally, the record is devoid since support the district
evidence which would and satisfac- finding an accord
court’s
tion, think that Moran’s and since I do not in- result extinction of
conduct should
debt, and remand for I would reverse trial.
new McBAIN, Estate
Susan Administratrix Deceased, Savage, Maynard of John Appellant, PRATT,
Henry S. Trustee Appellee. Trust, Children’s
No. 1632.
Supreme Court of Alaska.
Oct. Gilmore, Security cy Journey Interests Personal A Pro- : the Underworld Property, (1965). also, Clark, posed Salvation, De- See 51 Ore.D.Rev. 302 fault, Repossession, Forеclosure Deficien- *2 Jacobs, Anchorage, H. for ap-
William pellant. Bundy Briggs,
David Michael H. & G. Rudd, Ely, Anchorage, ap- & Guess pellee. RABINOWITZ, J.,
Before C. BOOCH- EVER, Judge J., and Court B. THOMAS STEWART. RABINOWITZ, Chief Justice. arising from appeal This concerns issues alleged of contract to make breach will. Savage and October On John separation Emily
his wife executed a agreement. Under that bequeath a trust for promised to Savage children either benefit of the practice, agreed extant value of his law parties practice itself.1 The or the law provisions parties as Exhibit relevant and herein D, contain read as follows: and the husband’s shall containing agrees prop- pour husband Husband's Will. The over property, erty agreed value, pouring regards both same all his substantial or its personal, presently heretofore mentioned real and transferred over incoporated in- and herein. husband [sic] the trust heretofore mentioned to corporated pre- herein, specifically agrees in- shall further if wife more Super he nаme in his will his decease him brother, terest his law Llewellyn automobiles, present Savage, Jr., Airplane of Al- T. Cub buquerque, Mexico, guardian New for the same shall be established give, bequeath that the current worth of the law SECOND: devise $42,000. day On the all my the Sav- residue and remainder of ages separation agree- estate, entered exception into their ment, Savage executed his will and ceeds practice currently created a trust for the benefit of thе three conducted me under the firm of Sav- *3 incorpo- Curran, Inc., 310, Both instruments age children. were & at Suite Avenue, by Alaska, reference Anchorage, rated into the West Sixth proceeds any In his will made the fol- and the from other law John lowing inten- by declarations of un- heretofore conducted me der any whatsoever, tion : firm name of what- ever kind or character and sit- wherever my I direct that all lawful FIRST: uate, possessed of which I die or to debts, expenses my sickness of last entitled, may any which I manner be and burial and of the administration of real, personal mixed, my whether or unto my paid, subject first estate be and children, SAVAGE, AD- KARYN thereto. RIANNE and SAVAGE SAV- JANET give, bequeath SECOND: I and devise dated the 10th AGE trust instrument my all of the and of residue remainder October, 1969, day of and known as the estate, of whatever kind or character Trust. Children’s situate, pos- and I die wherever of which I give, bequeath proceeds, and devise all may any sessed or to whiсh I manner either net or the law gross, entitled, real, from personal be whether currently by tice conducted me under the my children, unto mixed, KARYN SAV- Inc., Curran, name & AGE, firm of and ADRIANNE SAVAGE JAN- proceeds, gross, and the either net or ET in trust in- SAVAGE under any other law October, from heretofore day strument dated the 10th by my wife, conducted me unto SUSAN 1969, and known Chil- proceeds I R. exclude the SAVAGE. Trust; except dren’s that first I leave to any currently from law SAVAGE, EMILY fair GIERASCH by conducted me or heretofore conducted my market value my death of [sic] me, because of the love and affection Super airplane plus enough Cub wife, my I R. bear SUSAN SAV- moneys other my estate to total the AGE, knowing, and it the event be- $10,000. sum necessary, R. comes said SUSAN SAV- Apparently in quick succession after the AGE would utilize said separation agreement, execution of practices law- for the use and benefit divorced,2 Emily Savage and were John my children heretofore named. I do appellant, and married the Susan Sav- John any the use of manner whatever age 20, April McBain.3 On John language, precatory and not Savage executed a new inwill which he mandatory, impose any mean to ei- made the following provisions: implied, express or ther constructive or my FIRST: direct all lawful upon proceeds my practice or law debts, expenses my last sickness previous practices, said law but leave and burial and of the administration of my practices completely solely and to my paid, estate subject be first wife, beloved R. SAVAGE. SUSAN thereto. (Emphasis supplied.) parties. copy separa- minor children incorporated A 2. The said will is attached agreement hereto and tion into the divorce decree. may herein as Exhibit E and the same changed except by permission Savage’s widow, appellee, of the Su- remarried after perior Court, District, Third Judicial State death. of Alaska. death; prior his inoperative until May 1970. His died on entirely his death revocable appointed administratrix widow Any at time.6 estate, superseded amended Savage executed and the will which revocable, including executed in one probate. April was admitted performance contract.7 of an irrevocable Pratt, the trustee of the Sav- Henry S. Savage re- Trust, By ac- his age commenced this Children’s Pratt administratrix, tion Susan Sav- voked will Octоber against the validity McBain, impress challenge of the sec- age a constructive does not will, although practice,” he does contend proceeds of the ond trust on “the discharge contractual leaving failed claiming widow, either the obligation bequeath broke his *4 agreed agreed its children’s trust either the or value. leave the practice law the value of the or April will, 20 failed In the summary judgment Pratt for itself. moved testamentary prоvide for the transfer of pursuant Alaska Rules to Rule 56 of the agreed law or its either the found The court Civil Procedure. the failure children’s trust. genuine of material that there was no issue carry performance contemplated out the fact, judgment to the trustee. and awarded a the constituted provision in declared that the extent, we To that breach of contract. will which left the Savage’s second agree judgment of the his ceeds of Susan dаmages, we court. on the matter of But effect; that McBain was no force holding find the trial court erred of the estate the trustee be made creditor the a creditor of trust should be made proceeds of the the extent of the value the estate “to extent of practice; and a constructive ordered that practice. any proceeds” of the law trust trust for the of the children’s benefit separation agreement his Under imprеssed upon the From estate. Emily, ei Savage engaged to make administratrix, judgment, the Sav- Susan specific legacy ther of the value age appealed. McBain has agreement— practice at the time valid, An make a individual $42,000 bequeath itself —or bequeath binding contract to devise proceeds liquida (presumably the A con property specified in a manner.4 discharged tion). Savage could have his bequest make devise cannot trаct to obligation by performing either alternative. performed promisor, until the death of However, proceeds by leaving of the promisor during his life although the must to his wife and residue second provide for in his satisfaction his he did estate to the children’s obligation. promisor If contractual neither. make through will does not dies and his promisor aWhere to al has a breath gift, performances, has ternative and there however, is A contract occurs.5 contract, a breach of dam- measure during the life of the testator changeable (1968) supra 4, ; Parker, n. § 1 Bowe and (1940) ; 656, Walsh, v. 9 Alaska 660 4. Moumal 10.20, at 527, (10th 487-488. Yarbrough, 37 E.2d 531 Brooks v. Robertson, Cal.App.2d ; 1930) In 151 re 322, Cook, 639, 6. v. 111 P.2d Cook 17 Cal.2d ; 573, (1957) 209, Klockner 311 577 P.2d (1941), Tutunjian Vetzigian, 299 N.Y. 326 v. 782, 230, Green, A.2d 784 v. 54 254 N.J. 315, 275, (N.Y.1949). 87 N.E.2d 277 generally, D. (1969). 1 Bowe See W. 789, Cooley, 451 Collord v. 92 Idaho P.2d Wills, (1960). Page Parker, 10.1 § Revised Estate, (1969) ; In 212 Or. 535 re Smith’s 127, Guerin, Cal. v. 57 17 Cal.2d Ludwicki 1 P.2d W. Bowe 320 273 See (1961) ; Quayle Rptr. P.2d 415 367 Parker, supra, D. 10.3. § Mackert, P.2d 679 Idaho
£27
$10,000
wife,
of the
his
left
ages
the value
least onerous
“[a]
According
the residue and remainder”
to Professor Cor-
of his
alternative.8
estate
Similarly,
bin :
trust
the children.
un-
der the will
in which a
An alternative contract
one
again provided that the trust be entitled to
promises to render
of two or
party
some
estate,
spe-
residue of the
but made a
either
performances
alternatives
more
gift
cific
of the law
agreed upon as
mutually
one of which
tice to his wife
Each
ex-
Susan.
equivalent given in ex-
bargained-for
рressed only an intention to leave the resi-
performance
change for the return
children,
due of
estate to the
op-
party
.
the other
.
.
.If
specific
after certain
bequests
first
were
power
promisor,
in the
has
tion is
he
portion
made. The
of the estate which the
duty by per-
discharge
contractual
children’s
would take under either
per-
forming either alternative. Such
will would be a function of the total worth
complete
a full and
formаnce
him is
estate,
creditors,
claims of
primary
discharge of
contractual
costs of administration and the amount of
duty
....
breach of such
prior specific legacies. Although the resi-
repudiation
contract
consists
due of the
under
estate
either will
duty
promisor
of his contractual
conceivably
$42,000,
could
have exceeded
*5
perform any
or in his failure to
and all
or the value of the
of the law
provided in
of the alternatives
the con-
practice,
knowing
Savage
way
had no
at
a
tract. For such breach the measure of
the time the wills
were executed
damages
promisee
recoverable
the
is
would be the
conclude
case. We therefore
that alternative that is the
the value of
Savage
made no election
the
between
expensive
least
to
burdensome and
the
performances.
alternative
added;
promisor.9 (Emphasis
footnote
election,
was no
the
Since there
trust
omitted.)
damages
according
entitled to
measured
to
Similarly, the Restatement of Contracts
alternative,
the least onerous
in this
which
provides:
$42,000,
case
the
value of the law
damages
for breach of an alterna-
separation
at
the time of the
contract are determined in accord-
tive
agreement. Therefore, we hold that it was
ance with that one of the alternatives
superior
impress
error
the
a
court to
party having an
that is chosen
the
upon
the estate for the value of
trust
election, or,
an
in case of breach without
practice.
ceeds of the law
election, in accordance
the alterna-
sep-
note that under the terms of the
We
tive that will result
the smallest
promised
agreement, Savage
aration
not to
recovery.10
10,
the
“ex-
will of October
1969
parties agreed
that the value of thе
Court,
cept by permission of the
$42,000. Consequent-
exceeds
District,
Alaska.”
Third
State
Judicial
ly,
Savage irrevocably elected to be-
unless
Savage
sought
neither
received the su-
nor
queath
practice,
proper mea-
the law
the
executing
perior
approval before
court’s
$42,000.
damages
sure of
1970. The trustee
the will of
Savage
neither
did
elect the
Under
Savage did not re-
maintains that because
expensive
more
Under
superiоr
alternative.
permission
court
ceive the
10, 1969,will,
providing
after first
October
of October
to revoke the will
8. 1
on Contracts
at 593
§
Williston
453-454
§
9. 5A
on Contracts
Corbin
(3rd
1968) ;
(1964).
Ed.
on
1079
§
5 Corbin
Contracts
;
(1964)
at
Restatement
§
454
Contracts
Realty Co.,
565;
Contracts,
Inc. v.
344 at
Branhill
at 565
§
344
Restatement
Co.,
Montgomery
F.2d
Ward &
(2d
1932).
during
trust
of the assets”
equivalent to
vert
damages
is entitled to
trust
instrument was
The trust
which, ac-
lifetime.13
value of
agreement.
separation
trustee,
into the
Savage bequeathed
cording
provisiоn
that the trust
McBain contends
October
under the will of
the trust
revoke the trust
right
giving
provision
corpus
annulled
or invade
separation
interpret
As we
requiring him
separation
in the
provided for
parties
agreement,
testamentary gift
a
to make
in the
changes
court review
agreed present
its
practice or
make
insure that
would
order
the trust.
testamentary gifts.
doWe
approve
are not inclined to
investing
superi-
We
provision as
read this
which cre
рower
prevent
interpretation
contract
or court with
provisions.
long
among
ates conflict
its
Wher
changing his
so
testamentary
portions
possible, repugnant
con
provided for a
ever
amended will
interpreta
An
Savage’s property which
tract
be harmonized.
disposition of
must
given
part
one
con
will not be
complied with
tion
another.14 To ac
tract which will annul
Koslosky,11
said in
we
Green
As
cept
the revoca
McBain’s constructiоn of
con
awarding damages
“In
for breach
would
tion clause of
put
injured
tract
is made to
an effort
separa
deny
effect to
position
he would have
good
in as
Savage engaged
agreement in
tion
fully performed.”
had the contract been
gift
chil
to make
we
not think
12
do
Since
practice or
either the law
dren’s trust of
properly de
could have
do not
present
Although we
value.
his will
permission to amend
nied
speculate
for inсlud
motives
agreed testa
long as
made the
so
*6
in
provision in the trust
ing the revocation
have been
gifts, the contract could
mentary
strument,
unwilling to find that
we are
leaving either
fully performed by
giving
purpose
inserted for the
was
or the law
agreed value
unilaterally
power
to relieve
Savage
Furthermore,
since the
practice itself.
obligations.
contractual
himself
fully performed
contract could have
parties to
Further,
it is
that the
doubtful
cоstly
$42,000,
the less
by leaving the
separation agreement ever considered
alternatives,
$42,000
think that
we
provision
that a rather
technical
damages.
proper
measure of
the effect of
trust instrument would have
argues
separation agree
alternatively
undoing portion
McBain
agreement ex
sat
believe that the
ment.
appeal
that the
We
agree
Savage
presses an intention to bind
isfied
terms of
trust,
testamentary gift
instrument creat make the
to the
under the
ment because
provi
trust, Savage reserved
and
extent that the revocation
ing
to the
the children’s
“alter,
right
amend or revoke”
any
contrary,
intention to the
sion reflects
“sell,
trust,
against or con-
and to
borrow
give way.
interpretation must
we think that
(Alaska 1963).
P.2d 951
384
competency
Savage
and
M.
shall have
sell,
against
complete power
borrow
Id.,
at 952.
any
the assets of this trust dur-
convert
provides:
13. The trust
instrument
ing his lifetime.
right
FIRST : John M.
reserves the
14. Keystone
Laminates,
Inc.
Fed
Fabric
any
amend,
at
time or times to
alter or re-
(3d
;
Co.,
1969)
eral Ins.