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In re Estate of Howard L. Topness

December 8, 1972

IN THE MATTER OF THE ESTATE OF HOWARD L. TOPNESS, DECEASED. BOSE, RESPONDENT,
v.
BOSE, APPELLANT



Appeal from Circuit Court, Benton County. Robert L. Gilliland, Judge.

Harrison M. Weatherford, Albany, argued the cause for appellant. With him on the briefs were Weatherford, Thompson, Horton & Jordan, P.C., Albany.

Peter L. Barnhisel, Corvallis, argued the cause for respondent. On the brief were Fenner & Barnhisel, Corvallis.

Fort, Judge. Schwab, Chief Judge, and Langtry, Judge.

Fort

This probate matter comes before the court on appeal from an order overruling objections of appellant to the final account of respondent, its designation of heirship and ordering distribution of the estate in accordance therewith.

The Howard Topness family consisted of Howard Topness, his wife Clara Bose Topness, and their minor daughter Tina Topness, age nine. The family resided in Corvallis, Oregon, where Mr. Topness was employed as a company accountant. Mrs. Topness had been employed at Oregon State University but had left her employment there several years prior to devote her time to being a housewife. The family left Corvallis on a vacation trip in July 1970, and on August 1, 1970, while traveling in Nevada, were all killed in a head-on automobile collision. Clara Topness, the driver, was killed instantly, Howard Topness survived a short time and expired at the scene, and Tina Topness expired last while en route to a hospital in an ambulance. Both Mr. and Mrs. Topness died intestate, and all of the property of the family was owned in survivorship titles. These included real property, bank accounts and stock certificates.

The trial court concluded that title to all the jointly owned property, being based upon survivorship contracts as distinguished from passing by intestacy, became vested in Mr. Topness at the moment of the death of his wife Clara. Mrs. Topness thus owned nothing at her death to pass by intestacy. Thus the court held that at the time of Mr. Topness's death he was the sole owner of all the jointly owned property. The child, Tina, owned no property or interest therein.

ORS 112.085 provides:

"Any person who fails to survive the decedent by five days is considered to have predeceased the decedent for all purposes of intestate succession, and the heirs of the decedent are determined accordingly."

In commenting on that statute in Administering Oregon Estates Handbook, Rules Governing Heirs ยงยง 7.29, 7.30 (2d ed 1972), the author states:

"Formerly there was no requirement that an heir survive decedent for a period of time in order to inherit. The Uniform Simultaneous Death Act was effective only if there was no proof that the parties died otherwise than simultaneously.

"ORS 112.085 requires that an heir survive decedent by five days in order to succeed to decedent's intestate property. If he fails to so survive, he is considered to have predeceased the decedent for all purposes of intestate succession.

"* * *."

Appellant urges that if ORS 112.085 is valid, jointly held property would come within its purview. We disagree. The statute by its express terms applies only "for all purposes of intestate succession." Since the property did not pass by intestate succession to Mr.

Topness but by contract, the statute does ...


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