Ohms v. Church of the Nazarene , 64 Idaho 262 ( 1942 )

Appellants are respectively the children and one grandson of apparently the second marriage of Otto Ohms, deceased. This marriage was consummated and continued while the deceased was living in Oregon, during which time he accumulated an estate variously estimated at about $40,000, which some time prior to 1918 was divided between him and his second wife upon their divorce, whereupon he moved to the Weiser Valley in Idaho, later marrying a widow with children. There is uncertainty as to whether he lost the money he had when he came to Idaho, but in any event, he later again accumulated considerable property, among which was the forty acres in question herein. Upon the death of the wife whom he married upon first coming to Idaho, he married, November 6, 1918, his last wife, Lou Ohms, a maiden lady of years, now deceased.

March 20, 1931, Otto Ohms deeded the forty acres in question to his then wife, Lou Ohms. March 23, 1931, they made mutual, reciprocal, concurrent wills (Deseumeur v. Rondel, 76 N.J. Eq. 394,74 A. 703), devising and bequeathing all of the property of which either might die seized or possessed to the other, as follows:

"In the event that my beloved wife Lou Ohms shall be living at the time of my death, I do will and bequeath unto her absolutely all of the real and personal property whatsoever, of every name and nature, which I may own at the time of my death, the same to be hers absolutely.

Should my beloved wife Lou Ohms die before I pass on, then it is my express will and desire that all of the property, both real and personal, of which I may die possessed, shall be divided share and share alike, between my children, William Ohms, Albert Ohms, Henry Ohms, Emma Davis, Carrie Applington, Dora Donnelly, Mae Twist, Dan Ohms, Mable Moore, and one share to Ray Patton and Harvey Patton, the surviving children of my deceased daughter, Sarah Ohms Patton."

"Should my beloved husband Otto Ohms survive me, then it is my express will and desire and I do hereby will and bequeath to him all of the real and personal property of every name and description owned by me at the time of my death. Should I survive my beloved husband Otto Ohms, then, at the time of my death I hereby will and direct that all of the property of every name and description which I may own at the time of my death shall be divided, share and share alike between the following children and heirs at law of Otto Ohms my husband, to-wit:" [Here follow the names of the children and grandchildren of Otto Ohms, named in his will.]

Coincidentally, they executed a mutual contract providing that in consideration of the execution of said wills they agreed that all property owned by the one dying last should go to the children of Otto Ohms (appellants herein, including the grandson who holds his deceased parent's share).

"WHEREAS, It is the express will and desire of each of said parties that upon the death of either one of them all of the property owned by the other at the time of his or her death, shall go to, and become the property of the surviving member of this marriage, and at the death of the last member of the marriage, all of the property owned by the one dying last shall go to the children of Otto Ohms."

June 6, 1934, Otto Ohms died testate, and Lou Ohms acceded to his property, appraised at $2,475. Thereafter, Lou Ohms on November 7, 1934, and October 22, 1935, made other wills at variance with the above will of March 23, 1931, and the contract mentioned. Subsequently, November 3, 1938, being informed that said wills were in conflict with the contract, and being advised that she could not will this property to the church because the same would be a breach of the contract above mentioned, she revoked the previous wills by will made that day, reviving the terms and provisions of her first will, and deeded the land in question, valued at $2,500, to respondent church.

Following the death of Lou Ohms, July 23, 1939, her executor did not list the property in question as an asset of her estate, otherwise appraised at $2,092.29, on the theory that the deed was valid. Thereupon, the present action was instituted in equity by appellants to set aside the deed on the ground it was contrary to the intent and purpose of the contract above mentioned, also urging that it was obtained through undue influence. The latter contention has been entirely abandoned, and the matter is before us solely upon the question of whether or not the contract prohibited the giving of this deed. The trial court held the deed was valid and was not in violation of the contract because there were no restrictions upon the right of Lou Ohms to convey the property during her lifetime.

Appellants urge that the plain intent and purpose of the contract was that except for necessities (Heller v. Heller, (Tex.) 233 S.W. 870; Sample v. Butler University, 211 Ind. 122,4 N.E.2d 545, 5 N.E.2d 888, 108 A.L.R. 857) for the physical care and maintenance of the survivor, all property received by either at the death of the other was to be kept intact to pass upon the death of the survivor to the children of Otto Ohms, and that alienation during the life of the survivor, though not expressly prohibited, had the same effect as violative testamentary disposition. On the other hand, respondent contends that if the parties had intended that there should be no transfer by and during the lifetime of the survivor, the contract could and should have so specified. There are but few cases which have considered this precise point and line of demarcation. The following hold that such a transfer, being in the nature of a subterfuge, will not be sustained. (Bower v. Daniel, 198 Mo. 289, 95 S.W. 347;Ralyea v. Venners, 155 Misc. 539, 280 N.Y.S. 8; Daniels v.Aharonian, 63 R.I. 518, 9 Atl. (2d) 865; Sample v. ButlerUniversity, supra; Price v. Aylor, 258 Ky. 1,79 S.W.2d 350.)

Opposed to the above doctrine are the following authorities which hold that nothing should be read into the contract and that property may be thus disposed of. In re Salisbury's Estate, 242 A.D. 645, 272 N.Y.S. 135; National Life Ins.Co. v. Watson, 141 Kan. 903, 44 P.2d 269; Dickinson v.Lane, 193 N.Y. 18, 85 N.E. 818, 20 L.R. A.N.S. 1154. The court in National Life Ins. Co. v. Watson, supra, stated:

"Judgment was entered accordingly, and the intervening defendants appeal, contending here, as they did below, that the joint will of Martin and his first wife was contractual, and bound him especially since he elected to take under its provisions made in his behalf.

There is no gainsaying the soundness of these contentions, but just how far and to what extent do they affect the validity of plaintiff's mortgage? By the joint will, Martin Childers impliedly agreed that whatever property he may die seized of shall pass under that will to the seven children named in its fifth paragraph quoted above. He did not bind himself not to alienate or dispose of any of his property during his life as his own wants, needs, or convenience might require. When Martin Childers joined in the execution of the mutual and reciprocal will of himself and his first wife, he did not thereby intend to disable himself to exercise dominion over his own property. Certainly he had a right to borrow the $2,000 sued for in this action. And the judgment creditor could certainly have subjected this particular 100 acres to execution sale to the satisfaction of its judgment without a mortgage lien thereon, since it was not the homestead of Martin and his second wife. They reside on the 20 acres on which he enjoys the life estate devised to him by his first wife.

"We have not overlooked the many interesting cases which the industry of counsel for appellants has revealed for our perusal; but as was said in Morse v. Henton,97 Kan. 399, 155 P. 800, 'there is no occasion for employing rules of judicial construction of a will in search of the testator's intention, where such intention is expressed clearly and unequivocably in the instrument.' "

There is support for the proposition that even after or in spite of such alienation there remains a sufficient consideration to support the contract in this, that whatever property is left will pass as provided for in the contract, when otherwise the survivor might have made any disposition he or she desired.

While there was no estrangement between appellants and Otto and Lou Ohms, there was practically no communication between appellants and Otto Ohms after he left Oregon, no visiting, and apparently he was assisted in accumulating the money which went into the purchase of this particular property by the children (by her former marriage) of the wife whom he married upon first coming to Idaho.

After her death and his marriage to Lou Ohms, the latter not only contributed to the community (not this piece of realty) by property which she owned at the time of her marriage, but by her efforts after the marriage. The evidence is also clear and undisputed that members of the respondent church were solicitous and kind in the care and attention they gave to Mrs. Ohms during the last years of her life and her final illness. Lou Ohms certainly contributed more to the retention of this property than did appellants, since the evidence indicates that the bulk at least of the property or money which Otto Ohms had when he came to Idaho was lost and dissipated prior to the time he acquired this particular piece of property.

As generally stated, the lodestar is the intention of the parties, and that the disposition during the lifetime, if not prohibited, must be reasonable. (Rastetter v. Hoenninger,214 N.Y. 66, 108 N.E. 210.)

The contract and the joint wills of Otto Ohms and his wife, Lou, clearly stated that all property which they owned at the time of the death of one of them should become the property of the survivor, absolutely, and that any property remaining in the ownership of the survivor, at the time of his or her death, should go to his children and grandchildren, named in the wills. There is no restriction, other than above stated, expressed in these documents, and none may legitimately be implied therefrom.

In the preparation of their contract and wills, Mr. and Mrs. Ohms had the benefit of the assistance of an able and trustworthy member of the bar of this state, and there is no reason to believe the clear language employed therein does not correctly show their wishes and intentions. Courts should construe contracts according to the plain language used by the parties in making them, and we should not, in this or any other case, substitute what we may think the parties should have agreed to for what their contract shows they did agree to.

By the terms of her contract Lou Ohms was obligated to leave to her husband's children and grandchildren, if she survived him, all the property of which she died seized. That did not include property which she had owned absolutely and which she had given away prior to her death.

Balancing the fact that appellants, as the children and grandson of Otto Ohms, would be the natural recipients of his bounty against the fact that they did not assist in the accumulation of the property and that Lou Ohms did in its retention, and that respondents ministered to her needs and necessities during the latter portion of her life, and that, according to the evidence, she felt it was comforting, if not necessary, to her spiritual needs that this disposition of the property be made, can we say that her act was unreasonable? Dickinson v. Lane, supra. While it is true there is strong reason to conclude that the implied meaning of the contract was against this alienation during her lifetime, it still remains that such prohibition must be implied and is not expressly contained in the contract. Furthermore, conceding that the deed from Otto Ohms to his wife, March 20, 1931, as to testamentary disposition by her did not change the status of title to the forty acres, in other words, that all property held by her at her death would pass equally, irrespective of how she derived title thereto, such transfer cannot be ignored in determining what their intentions were as to this property; and evidently Otto Ohms desired, though legally he had not effected such desire, that this forty, as to his wife's dominion thereover, be in a different category than the other property of which she might be possessed. Such thought is not inconsistent with giving effect to the lack of restriction on alienation during the life of the surviving spouse because as to the contract we recognize the absence of such phrase, as to the deed from him to her we pay attention to the affirmative act. Insofar as the equities may be considered, therefore, there is more justification for leaning to the thought that it was the intention of the parties as expressed in the contract and the mutual wills that during the life of the surviving spouse the property might be handled without restriction other than as to testamentary disposition.

The above analysis leads legitimately to the conclusion that Otto Ohms had in mind that his wife during her life might dispose of the forty as she saw fit, making it, if still in her possession at her death, subject to their will. Even though she understood she could deed but could not will, it was not an evasion or subterfuge if no restriction on deeding was intended.

The dividing line is close, i.e., between upholding alienation as not prohibited by the contract and invalidating testamentary disposition because proscribed. It is better to give effect to the contract as made by the parties than attempt construction by implication or insertion by inference. (Messinger v. Cox, 33 Idaho 363, 194 P. 473; Holverson v.Evans, 38 Idaho 428, 224 P. 1067; Sorensen v. Larue, 43 Idaho 292,252 P. 494; Ehlinger v. Washburn-Wilson Seed Co.,51 Idaho 17, 1 P.2d 188; Weed v. Idaho Copper Company, 51 Idaho 737,10 P.2d 613; Farm Credit Corporation v. Meierotto,50 Idaho 538, 298 P. 378.) If it was the intention of the parties that what each might receive upon the death of the other should be kept intact and passed on without any diminution thereof to Otto Ohms' children, the contract should have so stated, which it did not.

Recognizing the full force and effect of the argument that this deed accomplished the same result as though there had been violative testamentary disposition, it seems better to adhere to the proposition that the contract will be enforced as it reads, and that since the makers thereof did not see fit to incorporate in it restrictions upon alienation during the life of the other, the contract will be limited to the restrictions therein contained, namely, against testamentary disposition. The deed was not testamentary in character because title immediately vested in the grantee reserving only a life estate. (Cell v. Drake, 61 Idaho 299, 100 P.2d 949.)

The trial judge was thus sufficiently justified in finding for respondent, and the judgment is affirmed. Costs to respondent.

Budge, Morgan, and Holden, JJ., concur.

This opinion was written and agreed upon prior to the death of Morgan, J., October 16, 1942.