Cordon v. Gregg

• Citation: 164 Or. 306,97 P.2d 732
• Parties: CORDON <I>v.</I> GREGG ET AL.
• Decision Date: 19 March 1940
• Court: Oregon Supreme Court

164 Or. 306

97 P.2d 732

CORDON

v. GREGG ET AL.

Supreme Court of Oregon.

Argued December 13, 1939.

Reargued on rehearing March 19, 1940.

Modified January 9, 1940.

Former opinion adhered to April 23, 1940.

Descent and distribution — Statutes — Common law

1. The descent and distribution of intestate property is governed and controlled entirely by statutes, and common law can be applied in determining heirship only when statute does not cover particular situation.

Trusts — Death of beneficiary

2. The death of sole beneficiary of trust, created by will containing no further provision for distribution of trust property, terminates trust.

Wills — Descent and distribution

3. The common-law rule that heir shall not take by devise estate which he may take by descent does not prevail in Oregon and should not be invoked to support claim that next of kin and heirs at law of testator, who devised all his property to executor in trust for testator's minor son, with direction to transfer it to son when he reached majority, instead of such son's mother, who was testator's divorced wife, succeeded to testator's realty on son's death without issue before reaching such age.

Statutes — Construction

4. In construing statutes, words therein which have well-defined legal meaning must be given such meaning.

Descent and distribution — Definitions

5. The word "descended" is defined as "derived, sprung from a person or stock," and word "descent" as "the passing of property to the heir or heirs without disposition by will; transmission by inheritance," and as "derivation, as from an ancestor; procedure by generation; lineage; birth; extraction."

Descent and distribution — Statutes — Construction

6. The word "descended" in statute providing that realty which descended to child, dying under age of 21 years and leaving no spouse nor children, shall descend to heirs of ancestor, from which such realty descended, as if child died before such ancestor's death, is used in sense of being derived from, rather than descent of property to heir from his ancestor by operation of law, as distinguished from acquisition of estate in realty by devise, which was regarded at common law as by purchase.

Descent and distribution — Trusts — Death of beneficiary

7. On death of testator's minor son, in trust for whom will devised all of testator's property to executor, with direction to transfer it to son when he reached majority, without providing for disposition thereof on son's death before reaching such age, testator's realty descended to his heirs, not to son's surviving mother, who was testator's divorced wife.

Descent and distribution — Ancestral estate

8. The typical "ancestral estate" is one coming to possessor by descent, but under statutes enlarging idea thereof to embrace gifts and devises from relative, property coming by devise or gift is regarded as an ancestral estate.

Descent and distribution — Personal property

9. An intestate's personal property must be distributed to his heirs at law, regardless of whether he was under or over age of 21 years at time of his death.

Descent and distribution — Trusts — Death of beneficiary

10. The personal estate left by testator's deceased minor son, in trust for whom will devised all of testator's property to executor, with direction to transfer it to son when he reached majority, without providing for disposition thereof on his death before reaching such age, must be distributed to such son's surviving mother, who was testator's divorced wife, rather than testator's next of kin, and administered on in administration of son's estate.

ON REHEARING

Wills — Descent and distribution

11. The common-law rule that an heir shall not take by devise where he may take the same estate by descent is not changed or abrogated by statutes regulating and controlling the descent of intestate realty.

Common law — Statutes

12. Applicable common-law rules not abrogated by statute are binding upon courts.

Wills — Trusts — Death of beneficiary

13. Notwithstanding devise of testator's entire estate to his minor son, his sole heir at law, was subject to trust delaying transfer of estate to son until he reached majority, son took same estate as he would have had there been no will, hence common-law rule that an heir shall not take by devise where he may take the same estate by descent was applicable in support of claim of testator's next of kin and heirs at law to testator's realty, on son's death intestate before reaching majority, as against claim of son's mother, who was his sole heir at law and testator's divorced wife.

Descent and distribution — Statutes — Construction

14. The words "descend" and "descended", in statute providing that realty which "descended" to child dying under age of 21 years and leaving no spouse nor children shall "descend" to heirs of ancestor from whom such realty descended, as if child died before such ancestor's death, should not be given the narrow, technical, or common-law meaning of descent by operation of law only, but should be given broader meaning, including acquisition by devise.

                  Ancestral character of property which came to intestate by
                deed, note, 122 A.L.R. 820
                  18 C.J., Descent and Distribution, § 20
                  See 16 Am. Jur. 769
                  68 C.J., Wills, § 132
                

In Banc.

Appeal from Circuit Court, Douglas County.

CARL E. WIMBERLY, Judge.

Suit in equity by Guy Cordon, as executor of the last will and testament of Francis Marion Huitt, deceased, against James R.W. Gregg, as administrator of the estate of James Gregg Huitt, deceased, Lucy M. Skeeters, and others for a declaratory decree determining whether undistributed intestate property of defendant administrator's decedent descended to his mother, defendant Lucy M. Skeeters, or to remaining defendants as next of kin and heirs at law of plaintiff's decedent. From a decree for such remaining defendants, named defendants appeal.

MODIFIED. FORMER OPINION ADHERED TO ON REHEARING.

Porter J. Neff, of Medford (Neff & Frohnmayer, of Medford, on the brief), for appellants.

B.L. Eddy, of Roseburg, for defendants-respondents.

Rice & Orcutt, of Roseburg, for Guy Cordon, as executor.

RAND, C.J.

Francis Marion Huitt died testate on October 14, 1937, leaving an estate of both real and personal property in Douglas county. He left as his sole heir at law James Gregg Huitt, his only child, a boy of the age of seventeen years. The boy died unmarried and without issue some two months later, leaving as his sole heir at law his mother, Mrs. Lucy M. Skeeters, the divorced wife of the testator and one of the defendants herein.

By his will, the testator named the plaintiff as executor and gave and devised all his property to the plaintiff in trust for his son with directions that all the devised property should be paid over and transferred to the son when he reached the age of twenty-one years. The will contained no provision directing what disposition should be made of the property of the estate in case the son should die before reaching the age of majority.

James R.W. Gregg is the duly appointed administrator of the son's estate. The remaining defendants, the respondents herein, are the persons who would have been the next of kin and heirs at law of the testator had the son predeceased his father. Plaintiff, as executor of the estate, brought this suit, praying for a declaratory decree to have judicially determined whether the undistributed intestate property of the deceased son descended, upon his death, to his mother as his sole heir at law or to those persons who would have been the next of kin of his father had the son predeceased the father. Upon the trial of the cause in the court below, a decree was entered adjudging that all the property of the estate of the son descended, upon his death, to the next of kin of the testator, and, from this decree, the mother and the administrator of the son's estate have appealed.

1. It is well settled in this state that the descent and distribution of intestate property is governed and controlled entirely by the statutes of this state and that it is only whenever the statute does not cover a particular situation that the common law of descent and distribution can be applied in determining heirship: Smallman v. Powell, 18 Or. 367, 23 P. 249, 17 Am. St. Rep. 742; Miller v. Miller, 117 Or. 399, 244 P. 526.

2. It is also settled in this state that, where the sole beneficiary of a trust created by a will dies and no further provision is contained in the will for the distribution of the trust property, the trust is terminated: Winslow v. Rutherford, 59 Or. 124, 114 P. 930.

Section 10-101, Oregon Code 1930, governs and controls the descent and distribution of real property in this state. So far as applicable here it provides:

"When any person shall die seised of any real property, or any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, such real property shall descend subject to his debts, as follows: * * *

"3. If the intestate shall leave no lineal descendants, neither husband, nor wife, nor father, such real property shall descend to his or her mother; * * *

"5. When any child shall die under the age of twenty-one years and leave no husband nor wife nor children, any real estate which descended to such child shall descend to the heirs of the ancestor from which such real property descended the same as if such child died before the death of such ancestor."

3, 4. But for subdivision 5 thereof, the real property of the deceased child would descend to his mother since she alone is his sole heir at law, and it would pass to her under the provisions of subdivision 3 of said section. The only question, therefore, for decision here is whether the legislature intended, when it provided that "any real estate which descended to such child shall descend to the heirs of the ancestor from which such real property...