Bonner v. Arnold , 296 Or. 259 ( 1984 )

LENT, J.,

specially concurring.

I concur in the result reached by the majority, but I would do so by creating a presumption and applying it to this particular set of facts.

I believe that whether the survivor should be entitled to contribution from the estate of the deceased tenant should be dependent upon the intent of the tenants. Where that can be ascertained under the law of evidence, that intent should control rather than creating and applying a rule of law which may actually do violence to the intent of the tenants.

It may be difficult to ascertain that intent in any given case; therefore, I would favor creation of certain presumptions to assist in that endeavor.¹

Where the debt which encumbers the property is incurred for the acquisition of the property by the tenants, I find it most reasonable to presume that the parties intended that the survivor, because he gains the entire interest of the tenants in the property, should, as between himself and the deceased tenant’s estate, also bear the entire burden of discharging the debt.

On the other hand, where the debt is not incurred to acquire the property, common sense takes me in a different direction. For instance, where two persons who already own property as cotenants with right of survivorship borrow money and mortgage or otherwise encumber the property to secure the debt thus created, and each takes a share of the borrowed funds for his own purposes, I find that it is reasonable to expect that the parties intended that the surviving tenant should have the right, as between himself and the deceased tenant’s estate, to exact contribution in the proportion dictated by the share of the money taken by the tenant who dies first. That is because the latter’s assets were enhanced by his share of the money which he took at the time of borrowing.

As did the majority, I illustrate by example. The cotenants, each for his own purpose, desires to borrow money. They borrow $10,000 and execute and deliver their joint and several note and mortgage on the property to the creditor. Each takes $5,000 for his own purposes. One dies and the other thereupon becomes owner of the property. The estate of the deceased tenant has a $5,000 asset (perhaps in some other form than money, such as stocks or bonds or other property purchased or improved with the proceeds of the loan) which it would not have had except for the $5,000 borrowed. Had the deceased lived until the obligation were due, he would have had to pay it from his assets. Why should not his estate, as between it and the surviving tenant, have to satisfy the obligation? The parties entitled to distribution of the assets of the estate would be in no different position than if their decedent had never borrowed the money. Had the money not been borrowed, the property would have passed to the survivor, and the decedent’s heirs would not have had to discharge an indebtedness, but there would also be $5,000 less assets in their decedent’s estate.

As the majority notes at the outset of the opinion, the money in this case was owed on the purchase price. The record does not contain evidence from which the intent of the parties can be divined. Applying the presumption that I would create, the intent of the tenants would be presumed to be that the survivor, John Arnold, as between the parties to this litigation, should bear the entire obligation of discharging the indebtedness.

Linde, J., joins in this specially concurring opinion.

1 The Oregon Evidence Code contains a list of presumptions, but the list is not exclusive. OEC 311(2) recognizes that other presumptions may be found in statutes outside the Oregon Evidence Code. The Official Legislative Comment expressly refers to the fact that the judiciary may create still other presumptions:

“The enumeration of presumptions in this rule does not impair the integrity of judicially created presumptions; nor does it affect the power of the courts to create new presumptions in the future.”

Comment to OEC 311.