229 P. 370 | Or. | 1924
Lead Opinion
It is clearly proven, in our opinion, that the contract was made substantially as alleged in the complaint. The plaintiff in her testimony seemed somewhat confused as to whether the agreement was that the property should be deeded or willed to her, and seems to have used the terms interchangeably, and also stated that decedent had agreed to give it to her, but the whole tenor of her testimony indicates that while she was not clear in her distinction as to terms, and while the decedent was probably equally ignorant in these matters, the substance of the promise was that the title to the property should continue in decedent until her death, and that she would make such provision as would insure the passing of the title to the plaintiff. Such was no doubt the intention of the decedent, as is clearly evidenced by the fact that a short time prior to her death the deceased wrote and signed with her own hand two instruments, one purporting to be a will, giving to plaintiff her personal effects, to wit, certain oil stock, and the second one, bearing the same date, purporting to devise her real property; from which it appears that she, also, was somewhat confused as to the exact difference between a will and a deed. But, so far as the intent was concerned, the instruments themselves indicate that she intended to make, and thought she was making a will, or wills, to all of her property. The two instruments are as follows:
“Portland, Or., June 30, 1921.
“These ten (10) shares of stock in the Bankers and Merchants Oil Company of Port Worth, Texas, I will to my sister Bessie Boynton Popejoy.
“Miss Lida Boynton.”
“Portland, Or., June 30, 1921.
“This is to certify that on this 30th day of June, A. D. 1921, I make my sister Mrs. Bessie Boynton
“Miss Lida Boynton.
“My Last Will and Testament.”
That it was her intention, at her death, that Mrs. Popejoy should succeed to all of her property, and that she fully believed that she had accomplished this design is so clearly proven by the uncontradicted testimony of the plaintiff and her husband, and corroborated by the testimony of disinterested witnesses, that it can scarcely admit of a reasonable doubt. That for more than four years decedent lived in the home of plaintiff and her husband, and was furnished, free of charge, with board, washing, clothing and other small and necessary expenditures incurred in her behalf, is also very thoroughly established, indicating that plaintiff conscientiously performed her part of the agreement. In fact, this is not substantially questioned or contradicted. The only serious attack made upon this suit of plaintiff’s is the fact that she presented a large bill to the probate court for all of these services, which appears to have been rejected, but she explains this by saying that her then attorney advised her that this was the only way in which she could get what she was entitled to, and we are disposed to accept that as the true explanation. In short, we are satisfied that it was the intention of the parties that Lida Boynton
It is claimed that there is no sufficient description of the property, but that is certain which can be made certain, and there can be no doubt as to what property was intended, because it was to comprise all of the property that the decedent should have at the time of her death.
There is no doubt but that it is competent to make a binding agreement to devise real property: Rose v. Oliver, 32 Or. 447 (52 Pac. 176); Richardson v. Orth, 40 Or. 252 (66 Pac. 925, 69 Pac. 455); Kelley v. Devin, 65 Or. 211 (132 Pac. 535); Stevens v. Myers, 91 Or. 114 (177 Pac. 37, 2 A. L. R. 1155). There is a diversity of authority as to the remedy for a breach of such contract. In some cases it is held that under proper conditions an action in quantum meruit for the value of such services will lie: Hawkins v. Doe, 60 Or. 437 (119 Pac. 754, Ann. Cas. 1914A, 765); Martin v. Wright’s Admrs., 13 Wend. 460 (28 Am. Dec. 468). See, also, authorities cited in note 2, Johnson v. Hubbell, 10 N. J. Eq. 332, as re-reported in 66 Am. Dec. 773. But where, as in this case, the services to be rendered were not such as could be computed in money, and where there was no intention on the part of either party that they should be so computed, the rule is different.
The consideration here, as stated in the complaint, is “that the plaintiff would-furnish the decedent a home during the remainder of the life of decedent; that is, would allow decedent to come to the home of the plaintiff in Portland, Oregon, and to remain therein during the remainder of decedent’s lifetime, and to be considered and accepted as- a member
The facts shown here bring the case within the rule announced by Mr. Justice Burnett in Kelley v. Devin, supra, which, in substance, is that in cases of this character equity will impress the property in the hands of the administrator or heirs at law with a trust in favor of the party who has completely performed the agreement and compel a conveyance in accordance with such agreement. There is a somewhat subtle distinction made in the authorities between such a remedy and the remedy involved in a suit for specific performance which arises from the fact that there can be no specific performance adjudged to compel a party to make a will; that instrument being ambulatory and always subject to revocation. The contract is one which can only take effect upon the death of the promisor. But equity, whose highest function is to seek out a remedy for every wrong, and to enforce the spirit rather than the letter of such a contract, will not permit one who has com
Under these circumstances, we are compelled to differ with the learned judge of the court below, and to reverse the decree here and enter a decree finding that the defendants hold the title to the property described in the complaint in trust for the plaintiff; and requiring them to deliver the personal property described in the complaint, and to make a conveyance to plaintiff of the real property described in the complaint; and in default of so doing that this decree stand for such conveyance of the real property; and that plaintiff herein recover her costs and disbursements in the Circuit Court and in this court.
Beversed and Decree Entered.
Rehearing
Former opinion modified December 2, 1924.
On Petition for Rehearing.
(230 Pac. 1016.)
In an ingenious petition for rehearing respondents contend, in substance, that appellant, having alleged in her complaint:
is estopped as a matter of law from showing the fact,.which is made so clear from the testimony as to be beyond question, that decedent actually lived in the home of appellant in Multnomah County for a period of about four years and died there. Respondents’ theory is that, by alleging that Ogle was “duly appointed administrator of said estate,” appellant has, in effect, alleged the legal conclusion that deceased was at the time of her death an inhabitant of Marion County, and that, while in fact the decedent was domiciled with appellant in Multnomah County at the time of her death and for nearly four years prior thereto, the order of the County Court of Marion County appointing Ogle administrator is a bar to her assertion of such fact in this pi’oceeding. It will be seen by the statement of the issues in the opinion heretofore rendered (Boynton v. Popejoy, [229 Pac. 370]), that the matter above quoted does not stand alone, but must be taken in connection with other matters stated in the complaint, which recite the fact of decedent’s domicile with appellant with great particularity. So far as appellant’s right to recover is concerned, it is not material whether decedent’s legal residence, domicile or inhabitancy was in Multnomah County or in Marion County. As a matter of law decedent might have been a technical resident or inhabitant of Marion County and on account of her employment have spent the
A study of the cases cited in “Words and Phrases,” under this title, indicates that the word “inhabitant” has various meanings not inconsistent sometimes with prolonged absence from a particular locality. The deceased had a house in Woodburn, in Marion County, paid her taxes there, had an attorney there, and, for the purposes of administration, the legal conclusion might fairly have been drawn that she was at the moment of her death an inhabitant of Marion County. But appellant stated her whole case in the complaint and there was no demurrer or motion to strike, and the objection is founded upon an ingenious play upon words rather than upon a matter of substance.
Our opinion goes too far in decreeing to appellant the absolute return of the real and personal property. The administrator has answered jointly with the other defendants and has made no allegations or showing that either the real or personal property is necessary for the purposes of administration, or that there are any debts of any kind against the estate. Assuming, however, that there may be such, the decree should be so modified as to subject the property to the payment of debts of deceased and to the right of the administrator to deal with it for such purpose, if necessary.
As to plaintiff’s costs and disbursements here, it would be unfair to the administrator to require him to pay them from, his own pocket, and as to him such costs as have been incurred by him should be paid
Former Opinion Modified on Petition for Rehearing.
