159 P. 1158 | Or. | 1916
delivered the opinion of the court.
The evidence shows, as stated, that Richard Dunn had accumulated property amounting to upward of
£<I give and bequeath to Winona L. Woods two hundred (200) acres to be taken from the north side of my lands situated in township 10 south, range 6 west of Willamette Meridian in Benton County, Oregon. I make this bequest with the distinct understanding that the said Winona L. Woods shall furnish me a home and take care of me either in sickness or in health during my natural life. ’ ’
He then devised to his four sisters all the rest of his land, finishing the disposition of his property by giving the residuum to all the legatees, to be divided between them equally. The July will was much like the former, except that it omitted all reference to the plaintiffs, or either of them.
“In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law. * # 6. An agreement for the leasing, for a longer period than one year, or for the sale of real property, or of any interest therein.”
Laying aside for the moment the idea that tMs was not an agreement for leasing or selling real property, but a contract to devise the same, we proceed to consider whether the clause of the will already quoted would be a sufficient memorandum within the statute. From the quoted devise we discern what is to be done by the owner of the realty. He is to give and be
“No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law.”
This, however, is qualified by Section 805, as follows:
“The last section shall not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent a trust from arising or being extinguished by implication or operation of law, nor to affect the power of a court to compel the specific performance of an agreement in relation to such property.”
‘ ‘ Every will shall he in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will, in the presence of the testator.”
Beading all these sections together, it is manifest that an agreement to devise real property is not within the purview of Section 808 as the defendants contend. The subject matter of this contract is governed by Sections 805 and 7319, both of which are satisfied by the writing introduced in evidence, to wit, the will of May* 1913.
That the undertaking was accomplished in less than the contemplated time cannot alter the question. Neither can it affect the matter that before the agreement was made he gave $1,000 to the plaintiff wife. That was, unsolicited by anyone, and was a pure gratuity which he had the right to bestow. In that view the case must depend entirely upon whether plaintiffs performed their part of the contract. We hear of instances where a real estate broker earns a large fee in a day or two after he has taken the contract of finding a purchaser of the premises. Its payment is enforced. We continually pay premiums for the insurance of our houses, yet the buildings never burn. Shall we recover the money because no conflagration ensues? On the other hand, a fire often occurs the day after the premium was paid for insurance covering an extended period of years. Are we entitled to a rebate of the premium on that account? The uncertainty of
In brief, the statutes governing such a transaction have been fully complied with. Even if the statute of frauds, upon which the defendants rely, affected the case, the record is replete with testimony of part performance, taking the matter out of the statute. The contract is established. Its performance on the part of the plaintiffs is thoroughly proven. Without their knowledge the decedent broke his covenant by making a new will, ignoring the plaintiffs, yet gave them no notice of rescission, but continued to avail himself of their hospitality, and eventually died in their home. The court cannot make a new contract. The stipulation was made. It must be observed. The following precedents are applicable to the instant case: Berg v. Moreau, 199 Mo. 416 (97 S. W. 901, 9 L. R. A. (N. S.) 157); Bryson v. McShane, 48 W. Va. 126 (35 S. E. 848, 49 L. R. A. 527); Lothrop v. Marble, 12 S. D. 511 (81 N. W. 885, 76 Am. St. Rep. 626).
Upon the fact found, the decree of the Circuit Court was an erroneous conclusion. It is reversed, and one here rendered according to the prayer of the complaint. Beversed. Decree Bendered.