Smith v. Hyett

This is a suit brought by plaintiff Hugh R. Smith to establish an ownership in a certain tract of land situated in Marion county, Oregon, and described as follows:

"Commencing on the west boundary of the donation land claim of Gidion S. Cox and Susanah M. Cox, his wife, in township six (6) south of range one (1) west of the Willamette meridian at a stone marked (SC) on the northwest corner of a tract of land containing 120 acres deeded to W.B. Cox by Gidion S. Cox on the 25th day of August, 1874, said deed being recorded at page 359 of volume 25, records of deeds, of said Marion county, Oregon, on the 8th day of November, 1879; and running thence east on the north boundary of said 120-acre tract 29.48 chains; thence north 15.06 chains to a stone; thence south 81 degrees 2 minutes W. 10.30 chains to an oak tree; thence south 70 degrees 11 minutes west 2.65 chains; thence north 61 degrees 39 minutes W. 4.06 chains to a stone; thence north 19 degrees 10 minutes west 5.31 chains to a stone; thence north 4 degrees 58 minutes east 6.84 chains to an iron pin in the center of the Silverton-Salem county road; thence west along the center of said road 12.37 chains to a point where the center of said road intersects with the west boundary of the said Gideon S. Cox donation land claim; thence south along the west boundary of said Gideon S. Cox donation land claim 25.31 chains to the place of beginning, and containing 54.06 acres of land, more or less, in section thirty-two (32) of said township six (6) south of range one (1) west of the said Willamette meridian."

Plaintiff had decree and all defendants appeal.

REVERSED.

The complaint alleges that on the fifth day of February, 1916, Addie G. Smith, the wife of plaintiff Hugh R. Smith, made a will of which the following is a copy:

"I, Addie G. Smith, being of sound and disposing mind and memory, do make and publish this my last will and testament in manner following, that is to say:

"I. "I direct that my funeral expenses and any indebtedness that I may have be paid by my executrix hereinafter named out of the first moneys that shall come into her hands properly applicable thereto. "II. "To my husband Hugh R. Smith, I give and bequeath the sum of one hundred ($100) dollars, which sum of money is to be received by him in lieu of all courtesy rights he might have in or to any real property of which I may die seized. "III. "All of the rest, residue and remainder of my property, both real, personal and mixed, wheresoever situated, I give devise and bequeath to my daughter Sylvia Smith Shepherd provided my daughter Sylvia Smith Shepherd shall be living at the time of my death, or provided if not living she may have left surviving her a child or children, then to said child or children in equal shares. But if my daughter Sylvia Smith Shepherd should not be living and should not leave (signed Addie G. Smith surviving her a child or children, then in that event all of the property mentioned and described in this clause of my will I give, devise and bequeath to the children of my sister, Alta Lindholm now living or which may be born to her during her lifetime, share and share alike. "IV. "I hereby nominate and appoint my daughter, Sylvia Smith Shepherd to be executrix of this my last will and testament, and it is my wish and direction that she be not required to give bonds or other security for the discharge of her trust.

"In witness whereof I have hereunto set my hand and seal this 5th day of February, 1916.

(signed) Addie G. Smith (Seal)

"The foregoing will was signed, sealed, published and declared by Addie G. Smith, the testratrix above named, as and for her last will and testament in the presence of us, who in her presence, at her request and in the presence of each other have hereunto subscribed our names as witnesses hereto the day and date above written.

(signed) Lucille Bell, Residence, Salem, Ore.

Geo. G. Bingham, Residence, Salem, Ore."

It is alleged that during all the times mentioned plaintiff had no knowledge of the provisions of the will and testament of Addie G. Smith; had never read the same or had it read to him, but was informed by his daughter, the said Sylvia Smith Hyett, then known as Sylvia Smith Shepherd, that it would be necessary for him to go to the office of the attorney for the executrix in Silverton, Oregon, and there sign up for the settlement of said estate; that a paper was presented to him for his signature and he signed the same without reading it or having same read to him, and without knowledge whatsoever of what he was signing otherwise than he was told that it was necessary for him to sign in order to settle up the affairs of the state of his deceased wife.

It is further alleged in the complaint as follows:

"That plaintiff has now learned for the first time that at the time he signed said paper in the attorney's office at Silverton, Marion county, Oregon, which was in words and figures as follows and is on file in the county court of the state of Oregon for Marion county, to-wit:

"Silverton, Oregon, Sept. 9, 1918.

"Received from Sylvia Smith Shepherd, executrix of the last will and testament of Addie G. Smith, deceased, the sum of one hundred dollars, in payment of the bequest to me under the terms of the last will and testament of Addie G. Smith, deceased; and I hereby elect to take under the will of the said — ceased and not the share alloted to me by law. (signed) H.R. Smith." it appeared that he had made an election to take the sum of one hundred ($100) dollars under the terms of the will of the said Addie G. Smith in lieu of his courtesy in the 54.06 acres of land appraised at forty-three hundred and twenty ($4,320) dollars, when in truth and in fact he could make no such election for he had no knowledge of the provisions of said will, had no knowledge of the nature or kind of paper he was signing at the time it was signed, and in addition thereto was in total ignorance of the law and the rights saved to him as the widower of his deceased wife by the statutes of the state of Oregon then existing awarding him the use during his natural life of one-half of the lands hereinbefore described, or in lieu thereof, an undivided one-third part in his individual right in fee of the whole of the said tract of land.

"That at the time of signing said paper he was not even informed that it in part was a receipt for the sum of one hundred ($100) dollars; that he received no money at the time of signing the same either from his daughter or from any other person; that he was upwards of sixty years of age at the time of signing same, had explicit confidence in his daughter and in her integrity and honesty, and that by reason of the facts and circumstances hereinabove related said paper, receipt or purported election was procured from him fraudulently and by deceit, and had no validity nor effect either at law or in equity and plaintiff has never made an election to take under the said will in lieu of his courtesy.

"That the defendant J.W. Hyett is the husband of the defendant Sylvia Smith Hyett and the defendant First National Bank of Silverton, Oregon, is a national banking association organized and existing under and by virtue of the laws of the United States of America, and each of the defendants in this paragraph named claim some right, title or interest in and to the real property hereinabove described, but whatever interest, claim or right each may have, or that of any other person, firm or corporation claiming through or under them or either of them, it is subsequent in right and inferior to the claim of this plaintiff therein.

"That ten years have not elapsed since the death of the said Addie G. Smith aforesaid."

The complaint prayed for a decree awarding plaintiff his courtesy in and to the real property, described in this complaint, free and clear of encumbrances; that he be decreed to have and to hold in his individual right in fee an undivided one-third interest in and to the whole of said lands, free and clear of encumbrances; and for an accounting of the rents and profits from said real property from the 18th day of February, 1918; that said defendant pay to this plaintiff one-third thereof; and that plaintiff have judgment against said defendant Sylvia Smith Hyett of all the one-third of such rents and profits found by said accounting to be due this plaintiff.

There was a demurrer to this complaint, which, being overruled, defendant answered, setting up the fact of the death of Addie G. Smith in February, 1918, alleging that Addie G. Smith was the owner of the property, described in the complaint, at the time of her death; setting up the fact of the probate of the will and her qualifications as executrix therein; and alleging that along in October, 1918, the court made its decree closing the estate and discharging the executrix.

It is further alleged that in connection with the administration of said estate and preparatory to filing the final account therein, there was paid by said executrix to Hugh R. Smith, he being the same person as H.R. Smith, the plaintiff herein, the sum of $100 in full of land for said bequest, and on September 9, 1918, the said H.R. Smith made his election to take under the will of said decedent, and not the share allotted to him at law. The answer further set up the receipt heretofore appearing.

It is also alleged that, on the closing of the estate, defendant Sylvia Smith Hyett, then being Sylvia Smith Shepherd, took possession of the real property and thereafter, up to the time of the filing of this suit, has been and is now, by her tenants, in possession thereof, and no claim or demand of any kind was ever asserted in or to said real property, or to any part thereof by plaintiff prior to the time of filing this suit.

The answer continues as follows:

"That on or about the fourteenth day of October, 1918, the county court of the state of Oregon for Marion county in that proceeding then therein pending entitled ``In the matter of the estate of Addie G. Smith, deceased,' duly made, rendered and entered its decree finding and adjudging that plaintiff herein had elected to take the share and provision made for him in the last will and testament of Addie G. Smith, deceased, and not any provision made for him by law, a copy of said decree being hereto attached, marked exhibit ``B' and by reference made a part hereof.

"That the said decree was duly and regularly had, made and given, and that the same has not been appealed from, reversed, set aside or modified; and that the same is in full force and effect; that plaintiff herein had notice that said decree would be applied for on said date, but that plaintiff did not make any objection thereto, nor has plaintiff at any time since the rendition of said decree made objection thereto or in any way questioned the same; and that the said decree so made by the court having jurisdiction of the settlement of said estate is a final determination of the matters urged in the complaint herein."

The First National bank answered, setting up the same facts in the answer of Addie G. Smith, and further alleging that on the 22d day of November, 1926, defendants J.W. Hyett and Sylvia Smith Hyett made application to defendant First National bank to borrow the sum of $5,000, and offered as security therefor a first mortgage on the tract of land hereinbefore described; that said persons at the time produced and delivered to this defendant an abstract of title to said real property, which showed, among other things, that administration was had upon the estate of Addie G. Smith, and that she had left a will bequeathing to Hugh R. Smith the sum of $100 and the residue of said estate to Sylvia Smith Hyett; that said Hugh R. Smith had filed in said estate and proceeding his election to take the provision made for him in the will of Addie G. Smith, deceased, and not the share of the property allotted to him by law; that at the time the said Sylvia Smith Hyett, by her tenants, was in possession of said property; that this defendant was not then or at any time prior to the time of service of summons upon it herein, advised or in any way informed that plaintiff had or claimed to have any right, title, estate, lien or interest in and to said real property; that relying upon the title to said property being in defendant Sylvia Smith Hyett, as disclosed by the records as aforesaid, and not being advised or informed to the contrary, this defendant on the 22d day of November, 1926, loaned to defendant J.W. Hyett and Sylvia Smith Hyett the sum of $5,000 and took a mortgage upon the property in dispute.

It was further alleged as follows:

"That because of the matters aforesaid plaintiff herein has elected to take the share and provision made for him in the will of said Addie G. Smith, deceased, and not an interest in said real property; that this defendant is, to the extent and amount of said mortgage a bona fide purchaser for value and without notice of said real property."

There was a further answer reiterating, in substance, the allegations of the first and separate answer and pleading the proceedings in the county court and the act of plaintiff Smith in executing the waiver heretofore referred to as an estoppel.

All of the defenses having been put at issue by appropriate denials, the case went to trial and resulted in a finding and decree in favor of plaintiff, from which all the defendants appeal. REVERSED. The case presented by the complaint is in many respects different from the case attempted to be proved at the trial. In the case presented by the complaint the plaintiff claimed that when he signed the receipt and election or waiver contained therein he was ignorant of the contents of the will and of his rights thereunder; that he received no money at the time of signing the receipt, either from his daughter or any other person; that he had no knowledge of the contents of the paper he signed, and that his signature to the same was procured by fraud and deceit. On the trial he admitted that long before he signed the receipt Judge Bingham had informed him substantially of the contents of the will and of his right to take one-third of the property; and before he signed the receipt, Mr. Ross, the attorney who drew the receipt, informed him of his rights under the will, and that there was a long discussion as to whether he should relinquish them, which he says he refused to do, but claims that he finally signed, because Ross told him it was necessary to sign as a witness. It is evident that he dealt unfairly with his attorney in the first instance by misstating his case as that attorney, who is known to be careful and skillful, would never have drawn the complaint in the shape it appeared had his client fully and fairly stated the facts as they appeared on the trial. The evidence shows conclusively that he had read and had full knowledge of the contents of the will before it was probated; that he well knew that under its provisions he was entitled to elect to take either $100 or a one-third interest in the fee; that he had been advised to take the fee by Judge Bingham; and we are satisfied from the evidence that he signed the receipt intending at the time to waive all his right in the property.

The court below found, substantially, that no fraud was practiced upon him to induce him to sign the receipt and the evidence satisfies us that he was paid by a check of his daughter's to the amount of $100 specified in the will, and that it was his intention at the time to waive all the rights he might have in the property and allow his daughter to have the fee devised as her own property. The question is not altogether what was intended — that, as we have just remarked, is satisfactorily shown — but, whether plaintiff's acts were sufficient to enforce that intention.

The will of Addie G. Smith, plaintiff's wife, was made in 1916. At that time the statute, so far as it relates to the present controversy, allowed the husband to take as curtesy a life interest in one-half of the land owned by the wife at the time of her death. Primarily, the statutes read as giving dower to the wife, but another section makes every provision in favor of the wife applicable reciprocally to the husband's curtesy and rights thereunder.

Section 7303, L.O.L., at the date of the execution of the will, read as follows:

"If any lands be devised to a woman, or other provision be made to her in the will of her husband, she shall make her election whether she will take the lands so devised or the provisions so made, or whether she will be endowed by the lands of her husband; but she shall not be entitled to both unless it plainly appears by the will to have been so intended by the testator."

Section 7304, L.O.L., reads as follows:

"When a widow shall be entitled to an election under either of the last two preceding sections, she shall be deemed to have elected to take such jointure, devise, or other provision unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her dower."

In 1917, Laws 1917, chapter 331, a sweeping change was made in the law relating to dower and curtesy as indicated by the following. Section 7316, L.O.L., was amended so as to read as follows:

"Every person of twenty-one years of age and upward, of sound mind, may, by last will, devise all his estate, real and personal, saving to the widow her dower or her election thereunder."

Mrs. Smith died in 1918, and consequently the act of 1917 governs this case. In 1919 the legislature repealed the act of 1917 and re-enacted the law as it existed previous to 1917. The amendments of 1917 never found their way into any codification and were therefore not so generally known as the preceding statutes, which were codified in Lord's Oregon Laws and again appear in Oregon Laws, the codification of 1920. The 1917 amendment was in form just long enough to create much confusion and misunderstanding in regard to the devolution of real property. The act was hastily passed and hastily repealed, an unfortunate procedure where so important a matter as the passing of title to real property is concerned.

In Walters v. Waggener, 104 Or. 682 (208 P. 753), it was held, not without vigorous dissent, that by the failure of a widow to apply for admeasurement of dower within one year she waived her dower right by operation of the statute, which so provided; but did not waive the alternative right to take one-third of the devised land in fee as provided by chapter 331, Laws of 1917. In that case there was no election or waiver in fact, but simply the election implied by statute from the failure to make timely application for admeasurement of dower.

The next case that came before the court was Bristow v.Jennings, 105 Or. 1, 3 (207 P. 863), which involved the definition of rights arising under a will made and probated while the 1917 statute was in force. The conditions of the will as stated in the opinion are as follows:

"Augustus C. Jennings died December 23, 1917, leaving a widow, the defendant herein, and also 10 children by a previous marriage. By his last will and testament he devised and bequeathed to the defendant for use during her natural life the real property upon which decedent and the defendant resided, consisting of one lot and fractional lot in the city of Eugene, also all household furniture in the premises mentioned, including family supplies and feed for cow and chickens on hand at the time of the testator's death. It was also provided in the will that in the event of defendant's remarriage within two years after the testator's death, defendant should have the free use of the premises devised to her for two years thereafter, or in the event of her death, the property should at once revert to the 10 children of the testator, or the issue of their bodies, share and share alike. An undivided one tenth to all the remainder of the testator's property, after payment of debts, expenses of administration and special bequests, was devised to each of the 10 children of the testator. The property left by decedent, other than that devised to defendant consisted of two lots and a fractional lot in the city of Eugene and 260 acres of land in Lane county and personal property of the approximate value of $750."

In this case there was no indication that the husband intended that the provision in the will should be in addition to her dower right and it was held in pursuance of the statute, she was presumed to have elected to take under the will, and it was held that, as she did not take any steps to recover her dower, she was presumed to take under the will under the statutory provision for implied election. But again, the question of election between dower and a right to take a one-third of the land in fee was discussed. This time by a different department of the court from that which decided Walters v. Waggener, supra, although Chief Justice BURNETT, who wrote the opinion in that case, sat in the latter case and concurred in the opinion. The opinion states the contentions of the parties as follows:

"In support of the decree of the circuit court, plaintiffs insist that defendant was compelled to elect between the provision made for her by the will and the rights given her by statute, and that having failed to commence proceedings for the recovery of her dower, she is conclusively, presumed to have taken under the will, and that by such action she relinquished or waived her right to dower, and with it, the right given her by statute to take in lieu of dower the undivided one-third part of the lands of her husband."

Further in the opinion it is said:

"Defendant did not take any steps to recover dower, and as between her right to take the provisions of the will and her right to dower, defendant is deemed to have elected to take under the will; the statute declares that to be her choice of those rights, ``unless within one year after the death of her husband she shall commence proceedings for the assignment of recovery of her dower'": O.L., § 10071.

"Likewise, as between her primary right to dower and her alternative right to take in lieu thereof an undivided one-third in fee of the lands of her husband, defendant is deemed to have elected to take the fee. Section 1, chapter 331, Laws of 1917, adopted the language last above quoted, and provides that a widow ``shall be deemed to have elected to have taken the undivided third of such lands unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her dower.'

"By force of those statutes, dower is simultaneously relinquished or waived in both cases. In the one case the provisions of the will are accepted in preference to dower, while in the other, dower is rejected, and in lieu thereof the right to an undivided third part in fee of the lands of the husband is taken. But in all this, no choice or election was made by defendant between the provisions of the will and her statutory right to an undivided third part in fee of the lands of her husband.

"It is reasonable to suppose that the legislature intended by chapter 331, Laws of 1917, to enlarge the rights of widows, but the extent to which those rights were enlarged must be gathered not only from the enactment itself, but by a consideration of related statutes and the general rules of law which apply to such cases. Cases may arise where a widow put to her election, may have elected to take the provisions of the will in preference to dower, but who having a choice between the provisions of the will and the one-third part in fee of the lands of her husband, will elect in favor of the latter right. In the absence, as here, of a clear and unmistakable intention of the legislature to so provide, it will not be presumed that the legislature intended that a widow should take both the provisions of the will and her statutory right to an undivided third part in fee of the lands, where the will of the husband expressly declares, or it appears by clear implication that the provisions of the will were intended to be in lieu of such statutory right. In cases such as those last mentioned, the widow must elect between the provisions of the will and her statutory right to take an undivided third part in fee of the lands, and without a statute controlling the obligation, time and manner of election in such cases, the general rules of equity in respect to the doctrine of election apply.

"Under those rules the election must be made within such time as is reasonable under all the circumstances of the particular case: 40 Cyc. 1975.

* * * * * "In the instant case it is unnecessary to determine whether the will imposed upon defendant the obligation to elect between the testamentary provisions in her favor and the right to an undivided part in fee of the lands of the testator. The lands in which defendant was devised a life estate are not involved in this suit. If no election was required, defendant takes both the benefits given her by the will and those flowing from her statutory rights, and if defendant was required to take such an election, her answer in this case and her assertion and prosecution of a claim to an undivided one-third part in fee of the lands in suit constitutes an election to take her statutory rights, which election under the circumstances of this case was made within a reasonable time. In either case defendant is entitled to, and is the owner of, an undivided third part in her individual right in fee of the lands described in plaintiff's complaint."

The general tenor is, although the question is not expressly decided, that somewhere within a reasonable time the legatee should elect whether to take under the provisions of the will or the one-third interest allowed by law. The case of Bristow v.Jennings, supra, is the latest utterance on this subject and still leaves the question of express election and waiver undecided. In both of these cases the waiver or election arose by implication of law. In this case we have an express waiver of statutory rights. "I hereby elect to take under the will of said deceased and not the share allotted to me by law." What was the share allotted to plaintiff by law? It was an alternative; either a life interest in one-half of the property or one-third interest in fee. Plaintiff knew what that interest was. He had been told by Judge Bingham, and advised by him to retain it. He was also told by Ross and yet, if the writing signed by him means anything it means a renunciation of his statutory right of the share allotted to him by law. His act is affirmative and not negative. He did not stop with waiving his right to curtesy, but waivedall his right under the statute simultaneously. He could do this. As was said by a noted English judge long ago, "A man can not have an estate put into him in spite of his teeth."

There can be no doubt that one can expressly waive any right accruing to him, or which he is entitled to claim irrespective of the technical statutory election. No estate in the land devised to Mrs. Sylvia Smith Shepherd, now Mrs. Sylvia Smith Hyett, passed until his election on the question of accepting the provisions of the will instead of curtesy. In this situation he not only expressly waived his curtesy but what he had a right to receive in lieu of curtesy. If he had confined his acceptance of the $100 alone to his curtesy, perhaps, he would have been in a better position to urge his claim to one-third in fee of the land, but knowing that the law allotted to him a one-third of the land in lieu of curtesy he, in our opinion, deliberately waived the whole statutory allotment whether it was curtesy or its alternative. A waiver must be with a knowledge of one's right, and he had this. It must be with intention to waive a right and, that he intended to do so, is shown, not only by the terms of the instrument but is indicated by his conduct. For eight years he stood by allowing his daughter to deal with the land as her own, to lease it in her own name, to pay the taxes upon it, to incur obligations to the extent of several thousand dollars, which if her estate is diminished must be paid by her, and he has never uttered one word to her in assertion of his claim on the property. Taking this as an evidence of intention to waive any claim to the property, it seems almost conclusive and, while waiver and estoppel are not always identical, we think his conduct may be fairly considered as an equitable estoppel. In addition to these evidences of intent, we have the testimony of J.W. Hyett, the present husband of defendant Mrs. Hyett, which is as follows:

"Well, I was in the service for a while, and when I came back from the service I happened to drive through the country and Hugh was out in front of the home and I stopped and we visited, and were talking about one thing and another, and the fact that while I was in the service Mrs. Smith had passed away, and he was telling me what a fine thing he had done for Sewell and Sylvia. He said ``I gave them my interest in the property'; and he said, ``I could have had it, but I wanted to see them have a good start'; words to that effect, and he said, he just gave them that property — his interest in it."

It is true that plaintiff denies this testimony, but he has been shown to be so inaccurate in every particular all through the case that we feel justified in giving Hyett's statement credit for truth, even though he may be as greatly interested as plaintiff. So far as reliability is concerned, plaintiff is contradicted in nearly every particular of his testimony. His own admissions show that he did not make a full and true statement of his case to his attorney. He is contradicted by Mrs. Hyett and Mr. Ross as to what took place when the receipt was signed. He is contradicted by Mr. Carson in regard to interviews in his office. He is contradicted by Mr. and Mrs. Lindholm in his statement that he had not read the will until after he had signed the receipt. In short, there is hardly a single material point in the case in which he is not contradicted, and we feel justified in saying that he is an impeached witness.

For the reasons herein given, the decree of the circuit court is reversed and an order will be entered here dismissing the case. REVERSED AND CASE DISMISSED.

COSHOW, C.J., RAND and BEAN, JJ., concur.