Anderson v. Anderson

• Decision Date: 18 June 1935
• Citation: 150 Or. 476,46 P.2d 98
• Parties: ANDERSON v. ANDERSON et al.
• Court: Oregon Supreme Court

46 P.2d 98

150 Or. 476

ANDERSON v. ANDERSON et al.

Supreme Court of Oregon

June 18, 1935

In Banc.

Appeal from Circuit Court, Morrow County; Calvin L. Sweek, Judge.

Proceeding under the Declaratory Judgment Act by Hilma Marie Anderson against Frank Anderson, Jr., and another for a determination of plaintiff's rights and powers under the will of her late husband, Frank Anderson. From the decree, defendants appeal.

Affirmed.

P. W. Mahoney, of Heppner, for appellants.

John Kilkenny and James R. Raley, both of Pendleton (Raley Kilkenny & Raley, of Pendleton, on the brief), for respondent.

BAILEY Justice.

Invoking the aid afforded under the Declaratory Judgment Act, sections 2-1401 to 2-1416, inclusive, Oregon Code 1930, the plaintiff Hilma Marie Anderson, seeks a determination of her rights and powers under the will of her late husband, Frank Anderson. Named as defendants are her two minor children, Frank Anderson, Jr., and Louise Carolina Anderson, who on March 7 1935, the date of the institution of this proceeding, were of the ages of 17 and 16 years, respectively. They are represented in the proceeding by their duly appointed guardian ad litem.

On September 2, 1919, Frank Anderson executed his last will and testament. After stating therein his age and residence and that it was his wish that all his just debts and funeral expenses be duly paid, the testator made the following disposition of his property:

"Second-I give, devise and bequeath unto my beloved wife, Hilma Marie Anderson, all the property, real, personal and mixed, of which I die possessed, so long as she shall remain my widow, relying upon her to properly rear, nurture, and educate our two children, Frank Anderson, Jr., and Louise Carolina Anderson. In case my said wife, Hilma Anderson, should again marry, it is my will that she then take for her sole use and benefit one-half of all the property then remaining from my estate and that my two children above named each receive one-fourth of the property then remaining from my estate.

"Third-It is my will, and I hereby direct, that my executrix shall have the right and power to sell, transfer and convey any and all of the property belonging to my estate, as in her judgment shall seem best, and to reinvest the proceeds, if she shall deem it advisable, in other property or securities, and to use such of the said proceeds as she may deem necessary in support of herself and our two children above named. And it is my will that she make such sales without the order of any court, making such return thereof as may be required by law."

After making the foregoing provisions, the testator nominated his wife executrix and directed that she act as such without bonds. This will was made a few days before, and in contemplation of, a surgical operation to be performed upon Frank Anderson, from which he did not recover. He died some time in the latter part of the year 1919. His will was duly admitted to probate, and his widow, plaintiff herein, was appointed executrix. The estate was closed in the year 1920, and the executrix thereupon discharged.

At the time of executing this will, Frank Anderson was 49 years of age. He was a farmer in Morrow county, with large holdings of land and in comfortable financial circumstances. He had made it a practice in business transactions to consult his wife and had complete confidence in her business ability. The testimony shows that she was thrifty and displayed sound judgment in such expenditures as she made, of which fact her husband was well aware.

The plaintiff appears to have managed well the property received by her, until the general business crisis, when she became unable to pay the taxes on the farm property. Taxes for the year 1930 and subsequent years, amounting to a sum in excess of $3,272.50, are unpaid, and the plaintiff personally is indebted to various persons, firms, and corporations, in a sum in excess of $8,200. In order to pay the taxes and her individual indebtedness she applied to the Federal Land Bank of Spokane for a loan, and offered as security a mortgage on part of the real property belonging to the estate of her late husband. The loan was approved as to amount, but was refused solely on the ground that the right of plaintiff to mortgage the property was questioned.

The record reveals that the real property cannot be sold at this time, except at a great sacrifice. Almost as much can be realized on a secured loan as on a sale. Unless some of the property can be sold or mortgaged to raise the money necessary to pay the taxes and plaintiff's indebtedness, all of the realty will be sold for delinquent taxes by the sheriff and by plaintiff's creditors.

It is the plaintiff's contention that under the terms of the will she was given the absolute fee-simple title in and to all the real property of which her husband died seized, subject only to defeasance of an undivided one-half thereof upon her possible remarriage. She further urges that until such time as she may remarry she is granted the power to sell and convey an absolute fee-simple title to said property or to give a valid mortgage on all or any part of it, unaffected by such possible defeasance.

The defendants through their guardian ad litem argue that the plaintiff has neither the power to convey nor to encumber the fee-simple title to the real property; that the third paragraph of the will granting the power to sell or convey the property was limited to the plaintiff in her capacity as executrix of the will; and that since the estate has been fully administered and she has been discharged as such executrix, the power to sell has been withdrawn. It is further contended by the defendants that even if it be assumed that the power granted by the third paragraph of the will, to sell the property, was intended to be conferred upon the plaintiff in her individual capacity, rather than as executrix, the terms of the grant did not in any event include the power to mortgage.

The first question presented is whether the plaintiff was by the will given merely a life interest in the real property of her late husband, or the absolute fee-simple title, subject to be divested of an undivided one-half of such property upon her remarriage. According to the second paragraph of the will, the testator gave, devised, and bequeathed to his wife, Hilma Marie Anderson, all the property, real, personal and mixed, of which he died seized, so long as she should remain the widow of testator, and in reliance upon her to "rear, nurture and educate" properly their two minor children. He then provided that in the event she "should again marry, it is my will that she then take for her sole use and benefit one-half of the property then remaining from my estate, and that my two children above named each receive one-fourth of the property then remaining from my estate." (Italics supplied.) No provision is made for any disposition of the property upon the death of testator's widow.

In construing provisions of a will similar to those contained in the second paragraph of the instrument here involved, the Supreme Court of Wisconsin, in Re Baird's Will, 171 Wis. 215, 177 N.W. 23, 24, stated: "It can be logically argued that the words 'so long as she remain my widow' are words of duration, that she could not remain a widow longer than during the term of her natural life, and therefore that she at most took a life estate. Treating the words 'I give and devise to my wife' as equivalent to the words 'I give and devise to my wife, Elizabeth, and her heirs'-that is, as conveying, when used without limitation, an estate in fee simple-there is no language in the will that indicates any intent on the part of the testator to limit the gift, except under one contingency, and that is the remarriage of his wife. Except for that the estate is absolutely hers. While it is a difficult matter to be certain that the actual intent of the testator is arrived at, we are of the opinion that the trial court was correct in holding that the words were used to create a condition, and that the widow took an estate in fee simple, subject to be divested only by her remarriage."

It is difficult to reconcile the various cases holding that under language closely similar to that used in the will here in review the widow acquires only a life estate with those holding that she takes an estate in fee simple subject to the divested only by her remarriage. Running through all the decisions is the fundamental proposition that wills must be so construed as to carry out the intention of the testator. In many of the cases holding that the widow acquires only a life interest we find testamentary provisions disposing of the property upon her death; but no such provision is involved in this proceeding. As was observed in the case of Vaughn v. Converse, 184 Iowa, 891, 169 N.W. 144 "The guiding criterion is the intention of the testator as it can fairly be gathered from the terms of the will. In the Busby Case [( Busby v. Busby), 137 Iowa 57, 114 N.W. 559] the will devised to the wife with a further proviso that she should remain unmarried. In the event that she remained unmarried, no provision was made for the disposition of the remainder after her death. We found that the intent of the testator was to devise a fee subject to the condition. In the Brunk Case [( Brunk v. Brunk), 157 Iowa, 51, 137 N.W. 1065] the will devised the property to the wife 'so long as she remains my widow.' It also devised the remainder of the estate 'after the remarriage' and also 'after the death' of the wife. The same was true in Price v. Ewell [169 Iowa, 206, 151 N.W. 79]. In those cases we found that the manifest intent of the testator was to devise to the wife a life estate only. The...