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same proportion as the law would convey | such portion thereof as in the judgment of the same to them in the absence of any my said trustees can safely be distributed will by me, reserving only the burial place be distributed and paid to the devisees pro where my wife is now buried, and a strip rata, not oftener than two times in each of land two feet in width adjacent thereto twelve months. I direct that my trustees on the west, north and east of said burial make final distribution of my estate on Janspot, and I hereby set aside said burial uary 1, 1907, or as soon thereafter as pracplace (spot) and said two feet of land ad- ticable, and if my devisees can agree, said jacent thereto forever as a resting place or final distribution can be by division of my burial spot for my wife and myself; said property by such agreement, but if they burial place joins Columbia Cemetery on cannot so agree, then my trustees shall make the northwest corner, which said cemetery a division of my property according to the is in section 10, township 1 north, range 1 shares and parts of shares in my estate east, Willamette meridian.
and my devisees can cast lots for their sey. “My will is and I direct that my estate eral interests either in person or by their shall be divided into six (6) shares or parts lawful representatives. Be it remembered, of equal value, to be disposed of in the fol- however, that in the administration of my lowing manner, viz: First. I give, devise estate by my executors, and before they and bequeath to my son, Fred D. Love, one close up my estate, and it passes to them as of said shares or parts. Second. I give, de trustees, all personal property is to be sold, vise and bequeath to my son, Green C. Love, and the proceeds of such sale will belorg one of said shares or parts. Third. I give, to and become a part of my estate. devise and bequeath to my son, Lewis P. "In their trust my trustees are hereby em. Love, one of said parts or shares. Fourth. powered to rent property and collect rents, I give, devise and bequeath to my grandson, make necessary repairs to property, pay William King, a son of my deceased daugh- taxes, or to be more explicit, they are emter, Malinda J. Shepherd, one-third part of powered hereby to collectively do all acts one of said shares or parts. Fifth. I give, that I could do were I living, necessary to devise and bequeath to my granddaughter, protect and keep my estate intact for my Matilda Shepherd, wife of James Shepherd, devisees hereintefore mentioned. Should a and a daughter of my deceased daughter, vacancy occur in my trustees, then the reMalinda J. Shepherd, one-third part of one maining ones or one are to act and carry of said shares or parts. Sixth. I give, de-out this trust. This is my only will, but I vise and bequeath to my great-granddaugh- now refer to a canceled will made by me ter, Hazel King, who is a minor child, and April 13, 1896, for the purpose of corroboa daughter of Albion King, deceased, who is rating the idea that it was always my pura son of my deceased daughter, Malinda J. pose to distribute my property equally beShepherd, one-third part of one of said tween my several children and to the heirs shares or parts. Seventh. I give, devise and of those of my children who had died, learbequeath to my daughter, Mary C. Stafford, ing children or grandchildren. one of said shares or parts. Eighth. I give, "Be it remembered that reference to said devise and bequeath to the children of my canceled will shall not make it a part of this deceased son, William Love, one of saia will, but only show what my intentions have shares or parts of my estate to be divided always been toward my heirs. Reference to among said children as follows: To L. W. the fact in this will that I am the owner Love, the one-fifth part of said share; to of and have made no deed to certain propJohn A. Love, the one-fifth part of said erty, is because I have been informed, re share; to Ulysses G. Love, the one-fifth part liably, of one fraudulent deed to certain of said share; to Charles W. Love, the one- valuable property purporting to have been fifth part of said share; to Frank P. Love, made by me and also have heard rumors the one-fifth part of said share.
of the existence of another fraudulent deed. "It is my will and purpose that my estate I pronounce and declare all such deeds or shall be kept intact and not distributed to deed as fraudulent; and any and all claims my devisees till January 1, 1907 (nineteen of any person or persons of having genuine hundred and seven). I direct that my ex- deeds or titles to any of the property hereecutors shall proceed to administer upon my inbefore described, are false and villainous, estate at once after my demise, and having and I hereby instruct my executors and in due time closed up my estate as executors, trustees to contest any such claims to the that then my estate shall pass to them as uttermost, that my property may be kept trustees, to be held in trust for my said intact and saved to my lawful heirs as heredevisees till January 1, 1907, and managed in devised. And lastly, I do hereby revoke hy them as such trustees till the time of all other wills heretofore made by me, and final distribution. I direct that my trustees, declare this and no other to be my last will T. T. Struble, Philo Holbrook and H. c. and testament, and desire that of this proof Breeden, from time to time as the receipts shall be taken and admitted to probate as
"In witness whereof I have hereunto set claims thereto, this suit was instituted to my hand this 5th day of January, 1899. determine the issue, and the cause having [Signed] Lewis Love. [Seal.]
been tried, and the relief prayed for in "The above instrument was at the date the complaint granted, most of the defendthereof signed, sealed, published, and de-ants appeal from the resulting decree. clared by the said Lewis Love as and for
Wm. M. Gregory and Dan J. Malarkey, for his last will and testament, in presence of appellants. H. J. Bigger and Wallace Mcus, who at his request, and in the presence Camant, for respondent. of each other, have subscribed our names as witnesses thereto. [Signed] 0. P. S. Plum MOORE, J. (after stating the facts as mer, Residing at Portland, Oregon. Edward above). It is maintained by plaintiff's counHolman, Residing at Portland, Oregon." sel that the will gave to their client an estate
At the time the will was made, plaintiff in fee in the premises; that the codicil does was a widower, and two children of a de- not clearly evince an intention to abridge ceased daughter were his only living issue. such absolute interest; that the condition He subsequently remarried, however; but no stated therein, associated with the continissue has resulted from the union. A sup- gency of dying "without lawful issue born plemental testament was made, of which alive and living at the time of his death,” the following is a copy: “I, Lewis Love, of does not mean the end of plaintiff's life at Portland, Oregon, do make this codicil to any time, but his decease prior to that of the my will. I hereby expressly confirm my testator, or before a partition of the real last will, dated January 5, 1899, excepting property. It is insisted by the defendants' in so far as the distribution of my property counsel, however, that the clause in the is changed by this codicil. First. I hereby codicil, "in case of his death,” means plainwill, decree and declare that the devise or tiff's dissolution at any time prior or subselegacy to my daughter, Mary C. Stafford, in quent to that of the testator or before or my said will, shall be for her sole and sepa. after January 1, 1907, when the land was to rate use, independent of her husband at all be divided, whereby they have possible intimes, and that at her death the said devise terests in the real property involved, and or legacy to her shall go to her children, that in rejecting their claims an error was share and share alike. Second. I hereby committed. will, decree and declare that the devise or
An irreconcilable conflict of judicial utterlegacy, in my said will, to my son, Fred D. ance exists as to the occurrence of a possible Love, shall be for his sole and separate uncertain incident such as is referred to in use, independent of his wife at all times, and the third clause of the codicil. In speakthat at his death the said devise or legacy text-writer says: "The general rule is that,
ing of a similar testamentary direction, a shall go to his children, share and share alike. Third. I hereby will, decree and de- where the contest is silent, the words referclare that the devise or legacy in my said nection with some collateral event, apply to
ring to the death of the prior legatee, in conwill, to my son, Green C. Love, shall be for the contingency happening as well after as his sole and separate use, independent of before the death of the testator.” 2 Jarman, his wife, at all times, and that in case of Wills (6th Ed.) 719. See, also, Rood, Wills, his death without lawful issue, born alive $ 653. Another author, referring to the same and living at the time of his death, then
subject, observes: "The intention of testathe said devise or legacy to him shall be tor that dying without issue may mean a long and go to the remaining devisees of death after the death of testator may also my said will in proportion as they hold of be inferred from other provisions in the will. the shares or parts of my said will. Lastly. Thus, a provision that, in case of the death I declare this is a codicil to my will, and of the beneficiary without issue, her share that this is the only codicil that I have made, shall revert to the estate of testator, shows and I hereby declare my said will of date that he contemplates her death without isJanuary 5, 1899, to be my last will and tes- sue after his own. So a provision that certament and also hereby re-affirm the same tain lands shall pass to testator's sons after in every particular, except as modified by the death of testator's widow, provided that this codicil, which codicil is to be attached if either dies without issue his estate shall to the said will. Witness my hand and seal pass to another, shows that the death withthis 26th day of February, 1902. [Signed] out issue meant a death after that of tesLewis Love. [Seal.]"
tator.” Page, Wills, 798. In the excerpt last The testator died July 3, 1903, and, his quoted it will be observed from the allusion will and codicil having been probated and to a testator's "estate," which means the propthe estate settled, the trustees set off to erty he might leave at his death, and from plaintiff the real property described in the the reference to a testator's "widow" which complaint. Several of the devisees execut- necessarily signifies her expected survivored to plaintiff deeds of any possible inter- ship, the intention is deduced that the conest they might have in his allotment; but, tingency specified is supposed to occur after others of them having asserted adverse the testator's death. In the case at bar it
will be remembered that the codicil declares could incumber the land by incurring exthat, if plaintiff die without lawful issue him penses for the support of the family (Id. ģ surviving, “then the said devise or legacy to 7039), thereby endangering all the real prophim shall belong and go to the remaining dev- erty, except the homestead, to sale on execuisees of my said will in proportion as they tion (Id. §221). The plaintiff could also hold of the shares or parts of my said will.” convey the premises to her in fee. Id. 8 As the remaining devisees could not take any 7036. The possible consequences suggested estate or interest in the testator's property could be partially thwarted by construing the until his death, the word "hold," as used in gift to plaintiff "for his sole and separate the third clause of the supplemental testa- use, independent of his wife at all times," ment, manifests an intention that the decla- as manifesting an intention on the part of ration of the contingency of plaintiff's death the testator to bestow a life estate only. As without issue meant his decease subsequent all property of the judgment debtor, except to that of the testator. If, however, the the homestead, is liable to execution (L. 0. condition of death without lawful issue living L. § 227), it follows that, if plaintiff acquired related to January 1, 1907, when the real a life estate in the real property, such interproperty was to have been partitioned, it est might be subjected to all the incidents may be supposed from the testator's ad- indicated, except dower, so that, in all other vanced age when the will was made that he particulars, the attempt to restrict the rights could not reasonably have expected to live of plaintiff's wife was almost unavailing. until that time, and that at his departure the The codicil makes no arrangement for plaindevisees would have become vested with an tiff's lawful issue in case they survive bim; estate in the lands which thereafter they but, if he took a fee in the land, no provicould hold within the meaning of that word. sion to that effect was essential.
A devise of real property is deemed to be  If he were given a life estate, however, a gift of all the testator's estate in the prem- and his grandchildren took a fee conditional ises subject to his distribution, "unless it with a remainder over as an executory devise clearly appears from the will that he intend- in case of their death prior to his, and such ed to devise a less estate or interest." L. was the testator's intention, his purpose might 0. L. 8 7344. "All courts and others con- in the greater part be effectuated. cerned in the execution of last wills shall The limitation over is not indefinite, but have due regard to the directions of the will, takes effect at plaintiff's death without lawand the true interests (intent) and meaning ful issue him surviving. 17 A. & E. Enc. L. of the testator in all matters brought before (2d Ed.) 564. If he took a fee in the lands, them.” Id. $ 7347.
such interest would formerly be reduced by  In the examination of a manuscript, in the limitation over, upon a definite failure of order to ascertain the intention of a party, issue, to an estate in fee tail. Hill v. Hill, courts will take into consideration the abili- 71 Pa. 173, 15 Am. Rep. 545. It has been ty of the person who drew the instrument suggested, however, that the statutes of this correctly to express the terms, objects, and state, permitting alienation of whatever inpurposes desired. Thus in Saunders v. Saun- terest a grantor has in real property, imders’ Adm'r, 20 Ala. 710, 716, in construing a pliedly repealed the statute de donis, which marriage contract it was held that the in- ancient enactment converted estates in fee tention of the parties was to be gathered simple conditional into estates in fee tail. from an examination of the entire agreement, Rowland v. Warren, 10 Or. 129. though the conclusion reached was contrary  The absence of the word “heirs" from to the express provision of a particular the codicil does not necessarily imply that a clause; the court saying: “This rule we ap- life estate only was given, for words of inply in the present case with the less hesita- heritance are not essential in Oregon to cretion, for the reason that the settlement bears ate or transfer an estate in fee simple (L. upon its face the most palpable marks that O. L. $ 7103), so that, if plaintiff took by the it was drawn by a person who was not only codicil an absolute estate, any attempt to entirely ignorant of legal forms, but incapa- limit a fee upon such a fee will not be sancble of expressing his meaning with clearness tioned. and precision."
It is argued by plaintiff's counsel that the In the case at bar the testimony shows third clause of the codicil is so different from that the codicil was written by a person evi- the first and second, which were employed dently unable to express in proper legal form by the testator to cut down the fee-simple esthe testator's directions. If the third clause tate given by the will to Mary C. Stafford of the supplemental testament transferred and Fred D. Love, that a purpose is disan estate in fee to plaintiff, his wife has an closed to devise to Green C. Love more than inchoate right of dower in the premises, a life estate. A comparison of the first and which interest, if she survives him, will be- second clauses with the third will show that come a life estate of an undivided one-half the differences observable are in the phrases unless she is lawfully barred thereof. L. 0. / “that at her death” and “that at his death" L. $ 7286. If the absolute estate to her hus- in the former, and “that in case of his death"
the condition, "without lawful issue, born the first taker, in express terms or by implialive and living at the time of his death, cation, is not applicable where the gift is then the said devise or legacy to him shall clearly of a less interest." belong and go to the remaining devisees of No attempt will be made to reconcile the my said will in proportion as they hold of conflicting decisions or to determine the the shares or parts of my said will."
weight of authority upon the question of  The testimony shows that when the death of a devisee in connection with some codicil was made plaintiff was 52 years old collateral fact, supposed to happen either and his wife 46, and for the time of their before or after the death of a testator, but joint lives, or during his life if he should the decision of this cause will be placed on survive her and remarry, the law will pre- what is believed to be the purpose of Lewis sume the possibility of issue. Hamilton v. Love respecting the objects and the extent Sidwell, 131 Ky. 428, 115 S. W. 204, 29 L of his bounty. R. A. (N. S.) 961, and note on the rule in  The intention of a testator is the guide Shelly's Case, 29 L. R. A. (N. S.) 961, 1021. in construing the terms of his last testaIn view of such presumption, it is unreason- ment, and, if his design can reasonably be able to suppose that the testator desired to ascertained, it controls the disposition of his exclude this son's lawful issue from taking property. Shadden v. Hembree, 17 Or. 14, the share to which each would be entitled 20, 18 Pac. 572; Jasper v. Jasper, 17 Or. if living at the time of plaintiff's death. As 590, 593, 22 Pac. 152; Portland Trust Co. such issue would take a proportion of the v. Beatie, 32 Or. 305, 309, 52 Pac. 89. share set off to Green C. Love, based on the If, after giving a fee to plaintiff, the ratio determined from the number of his will had also included the third clause of children, his grandchildren would take the the codicil, it is possible that a presumption part of their mother by representation and might be invoked that the condition of dying not a full share in case other lawful issue without living issue would be construed to survived plaintiff's death. These possible mean the death of plaintiff before that of the conditions and the manifest purpose of the testator, so that on the happening of the testator to prevent plaintiff's wife from ac- latter event the absolute estate would have quiring an estate in fee or a dower right to become vested in Green C. Love of which any part of the land evidently induced the he could not have been deprived on account difference noticeable in the codicil respecting of any failure of issue him surviving. But, the devises to Mary C. Stafford, Fred D. however this may be, the legal principle thus Love, and Green C. Love, each of whom in adverted to can, in our opinion, have no apour opinion took only a life estate,
plication to the case at bar, for in so far as  It will be remembered that the will di- the codicil conflicts with the will it is the rected the executors to sell the personal prop- last expression of a testamentary disposierty and settle the estate, after which, astion of property, revoking the will to the extrustees, they were empowered to lease the tent of the disagreement in their provisions real property, collect rents, make necessary and preventing a construction of their terms repairs, and pay taxes; but, as they were re- with reference to each other. quired to protect and keep the real estate in  Examining the will and codicil as each tact for the devisees, they were impliedly dovetails into and thus necessarily becomes prohibited from selling any part of the prem- a part of the other, and regarding plainises. We conclude, therefore, that they never tiff, who is the first taker, to have been the took the legal title to, but held the posses- favorite object of the testator's bounty, and sion of, the land, and that their duties were as such entitled to the benefit of every imfully discharged when they had divided the plication in his favor, but considering the premises into six parts of equal value and conflicting provision of the codicil as revokset off the several shares to the devisees en- ing the will pro tanto, we nevertheless betitled thereto who at the death of the tes- lieve that the term “use," as employed in tator and prior to such apportionment took, the supplemental testament and as modified as tenants in common, a vested estate in fee by its other provisions, clearly evinces an in the real property. The rule of construc-intent on the part of Lewis Love to give tion prevailing in most states of the Union to plaintiff a life estate only, since that is that a devise of a fee, coupled with a con- word, when applied under similar condidition that if the devisee die without issue tions, generally means the transfer of an inthe estate is to go to others, means dying terest in land of that duration. 8 Words & without issue in the lifetime of the testator, Phrases, 7228; Brunson v. Martin, 152 Ind. unless a different intention is manifest from 111, 52 N. E. 599; Spooner v. Phillips, 62 the context of the will. "The presumption Conn. 62, 24 Atl. 524, 16 L. R. A. 461; In that the contingency of dying without issue," re Metcalfe's Estate, 6 Misc. Rep. 524, 27 says the author of the exhaustive note to the N. Y. Supp. 879. The deduction that plaincase of Lumpkin v. Lumpkin, 25 L. R. A. tiff took only a life estate is strengthened by (N. S.) 1063, 1064, "is to be restricted to tes- the provision of the codicil which treats the tator's lifetime being fundamentally limited premises to be partitioned to him as remainto cases where an absolute gift is made to ing undiminished at his death, thereby im
pliedly denying to him the right of aliena- It follows from these considerations that tion. The determination thus reached leaves the decree is reversed, and the suit disfor consideration the inquiry of who were missed. intended as the devisees in fee of the land, and what is the order of their respective BURNETT, J. I dissent from the opinion rights.
of the majority of the court in this case.  It is a well-recognized legal principle All agree that except for the codicil Green that an heir at law can only be disinherit- C. Love takes an estate in fee simple. Uned by express devise or necessary implica- less defeated by the supplementary testation. Bender v. Deitrick, 7 Watts & S. (Pa.) ment, that estate continues. As to Mrs. Staf284, 287. That the testator did not intend ford and Fred D. Love, the testator left no to exclude pla intiff's grandchildren from doubts. No uncertainty is annexed to the sharing his estate in case of the death of certain event of the death of either of them. Green C. Love, if they or either survive him, At their death, whenever that comes, there appears to be manifest from a clause of the is the remainder to their children. But, last will, to wit: "It was always my purpose as affecting the course of descent in the case to distribute my property equally between of Green C. Love, the certain event of his my several children and to the heirs of death is turned into an uncertainty by the those of my children who had died, leaving annexation of the condition that it shall be children or grandchildren." Though neither “without lawful issue born alive and living of these great-grandchildren is named in the at the time of his death." These words will or codicil, nor is any provision express- should be considered only as a qualification ly made for them, we think it is fairly dis- in favor of the remaining devisees of the closed from the context of the codicil that, will, for they would have precisely the same if either were living when plaintiff died, potency in construing that document if such survivor or survivors would take the Green 0. Love had never married. We canreal property or a part thereof in fee by im- not say as a matter of law that the possibili. plication.
ty of issue born alive to Green C. Love by [9, 10] The term “issue,” as used in the his present wife is extinct. If such a child codicil, includes, among others, grandchil- should be born and should outlive its father dren (17 A. & E. Enc. L. [2d Ed.) 544), and but die without issue before its mother, she since plaintiff's lawful issue of that degree would inherit from it. The will has not cut were in esse when the supplemental testa- off her inheritable quality in such an inment was made, and as he took by the codicil stance, and why should it in others unless only a life estate in the land, they, as re- clearly so nominated in the testament? The maindermen, became vested with a fee con- words relating to the death of Green C. Love ditional at the death of the testator subject without issue are of use only to determine to such life estate and to the possibility the dilemma of whether the fee goes to him of their interest being diminished by the or the “remaining devisees.” By a natural birth of other issue, and to the remainder construction of its language the third paraover by way of executory devise to the oth- graph of the codicil passes the property er devisees, in case these grandchildren or therein mentioned either to Green C. Love any other issue of plaintiff do not survive or to those designated therein as remaining him (30 A. & E. Enc. L. [2d Ed.] 701; Still devisees. The descendants of Green 0. Love v. Spear, 3 Grant, Cas. [Pa.) 306; Sturges are referred to only in the negative. They v. Cargill, 1 Sindf. Ch. [N. Y.) 318).
are not mentioned affirmatively as devisees. This conclusion, in our opinion, upholds The codicil casts no estate upon them. As the testator's intention as gathered from his kindred existed when he made the will, the will and codicil when viewed in their they are not heirs of the testator, so that entireties where necessary, and considering they must be named or provided for in his the supplemental testament as a last will testament. If no such persons exist at the wbich revokes the prior will in so far as it death of Green C. Love, the operation of the conflicts therewith. If Lewis Love had de- will takes the estate, not to their heirs, such signed that the remaining devisees should as a parent or collateral kindred of the other take as remaindermen, on the termination line, but to the “remaining devisees" of the of plaintiff's life estate, and that the lawful will. If persons of the issue of Green C. issue of the latter who should be living at Love are in being at his death, they may his death were to be excluded, there would inherit from him; but no property will come have been no need to refer to such contin- to them by virtue of this codicil. If all gency; but the allusion to plaintiff's decease three clauses of the codicil are to be conunder the condition indicated shows a pur- strued alike, the testator would have said: pose that such issue, if surviving, should “And that at his death the said devise or take the remainder, though not so expressly legacy shall go to his lawful issue living at stated, and, if plaintiff should die without the time of his death or if there be no such lawful living issue, the remaining devisees issue said devise or legacy shall belong and are to take the lands in fee as an executory go to the remaining devisees,” etc.