We went on to state: "We said in Stringer, supra, adopting the holding in Schomp v. Brown, 215 Or. 714, 335 P.2d 847, that mutual or reciprocal wills, even though revoked, will stand as evidence of the contract. The agreement which provides the underpinning for the contractual wills is irrevocable if the survivor takes advantage of the provisions of the will made by the other.
Defendants' second contention in effect argues that notwithstanding the intent of the parties a contractual provision such as the one in question here does not apply to survivorship property as distinguished from property passing by virtue of the will. Schomp et al v. Brown et al, 215 Or. 714, 335 P.2d 847, 337 P.2d 358 (1959), is to the contrary. There the parties executed reciprocal wills which provided in pertinent part, Article IX:
Putting aside the residence, the present record discloses property owned by the entirety by the plaintiff and her husband of an estimated value of $55,000.00. If Howard had died at any time prior to her deed to him, she would be the outright owner of this property. Wenker v. Landon, 161 Or. 265, 88 P.2d 971; Dahlhammer Roelfs v. Schneider, 197 Or. 478, 252 P.2d 807; Schomp v. Brown, 215 Or. 714, 335 P.2d 847, and on re-hearing 337 P.2d 358. Property in which ownership was claimed by the plaintiff had an estimated value of $17,400.00. The net value of the husband's estate at that time being $314,000.00.
In several cases, we have referred to a court "impressing" property with a constructive trust. See Montgomery v. U.S. Nat’l Bank et al. , 220 Or. 553, 570, 349 P.2d 464 (1960) (using that wording); Schomp et al. v. Brown et al. , 215 Or. 714, 716, 335 P.2d 847, decision clarified on denial of reh’g , 215 Or. 714, 723, 337 P.2d 358 (1959) (same). And in several more cases, we have made references to courts "imposing" constructive trusts or the "imposition" of a constructive trust by a court.
The limitation period for a contract to make a will begins to run on the death of the testator whose actions are challenged. See Lewis v. Siegman, 135 Or. 660, 665, 296 P. 51, reh'g den. 135 Or. 660, 667, 297 P. 1118 (1931); see also Schomp, et al. v. Brown, et al, 215 Or. 714, 335 P.2d 847, reh'g denied 215 Or. 723, 337 P.2d 358 (1959); Ellinwood and Ellinwood, 59 Or.App. 536, 651 P.2d 190, rev. den. 294 Or. 460, 658 P.2d 1162 (1982). Plaintiffs brought these actions within the statutory limit.
79 Am.Jur.2d, Wills, supra, § 811 at p. 865. We said in Stringer, supra, adopting the holding in Schomp v. Brown, 215 Or. 217, 335 P.2d 847, that mutual or reciprocal wills, even though revoked, will stand as evidence of the contract. See, Van Vlack v. Van Vlack, 181 Or. 646, 182 P.2d 969, rehearing denied 185 P.2d 575 (1947).
See Stevens v. Meyers, 91 Or. 114, 147-48, 177 P. 37, 2 ALR 1155 (1919); 1 Restatement of Contracts (1932) 158, § 135; and 11 Williston on Contracts (3d ed 1968) 741-49, § 1421. See also Schomp et al v. Brown et al, 215 Or. 714, 719-20, 335 P.2d 847, 337 P.2d 358 (1959); Florey et al v. Meeker et al, 194 Or. 257, 277, 240 P.2d 1177 (1952); Taylor v. Wait, 140 Or. 680, 684, 14 P.2d 283 (1932); Phez Co. v. Salem Fruit Union et al, 113 Or. 398, 419, 233 P. 547 (1925); Note: Contracts, Third Party Beneficiaries — Donee's Rights in Oregon, 22 Or L Rev 297, 301, 304 (1943); and Annots., 2 ALR 1193 (1919); 33 ALR 739 (1924); and 73 ALR 1397 (1931). See James, Civil Procedure (1965) 397, § 9.8. See also Sparks, Contracts to Make Wills (1956) 152.
When an estate is so devised in one clause, the interest so devised cannot be taken away or diminished by any subsequent provisions of doubtful import, or by any inferences deductible therefrom repugnant to the estate given. Schomp v. Brown, 215 Or. 714, 335 P.2d 847, 337 P.2d 358 (1959); In re Shira's Estate, Ohio Prob. 165 N.E.2d 60 (1959); 4 Bowe-Parker: Page on Wills, p. 647. Affirmed. Costs to respondent.
And to the same effect is 57 Am.Jur., Wills, § 174, p. 154. In Schomp v. Brown, Or., 335 P.2d 847, 850, it is clearly stated: "* * * Such a reciprocal or mutual will, even though revoked, still stands as evidence of the contract. * * *"