Boice's Estate, In re

• Citation: 209 Or. 521,307 P.2d 324
• Parties: , 64 A.L.R.2d 773 In the Matter of the ESTATE of Bert E. BOICE, Deceased. Leroy B. SKOUSEN, administrator c. t. a. of the estate of Bert E. Boice, deceased, Appellant, v. Edith R. Dahihammer ROELFS, Respondent.
• Decision Date: 21 February 1957
• Court: Oregon Supreme Court

Page 324

307 P.2d 324

209 Or. 521, 64 A.L.R.2d 773

In the Matter of the ESTATE of Bert E. BOICE, Deceased.

Leroy B. SKOUSEN, administrator c. t. a. of the estate of

Bert E. Boice, deceased, Appellant, v. Edith R. Dahihammer ROELFS, Respondent.

Supreme Court of Oregon.

Argued Dec. 12, 1956.

Decided Feb. 21, 1957.

B. G. Skulason and Leroy B. Skousen, Portland, for appellant.

S. J. Graham, Portland, for respondent. With him on the brief was Ben F. Forbes, Portland.

Before TOOZE, Acting C. J., and LUSK, BRAND and McALLISTER, JJ.

McALLISTER, Justice.

We are called upon to construe a paragraph of the will of Bert E. Boice, deceased, reading as follows:

'Third: To my stepson, George Dahlhammer and to his sister, Edith, should they, or either of them, survive me, I give, devise and bequeath the sum of Two Thousand Dollars ($2,000.00) each. Should the said George Dahlhammer or his sister Edith not survive me, then I direct that as to such devisee or legatee such bequest shall lapse. I further direct that said sums of Two Thousand Dollars ($2,000.00) each shall be paid out of the sale of certain real property which I now own in Multnomah County, Oregon, on the Rockwood Road between the Section Line and Powell Valley Roads, and I further direct that in the event said real property shall be sold by me, or under my direction, prior to my demise, and I shall have paid the sum of Two Thousand Dollars ($2,000.00) to said George Dahlhammer or his sister Edith, or either of them, prior to my demise, that the bequest herein provided for shall lapse.'

The real property on the Rockwood road referred to above consisted of two contiguous tracts, designated in the record as tract No. 1 containing 15.54 acres, and tract No. 2 containing 8.9308 acres.

On April 4, 1926, Benjamin F. Dahlhammer was the owner of tract No. 1 and he and his wife, Pearlettie A. Dahlhammer, were the owners of tract No. 2 as tenants by the entirety. Benjamin F. Dahlhammer died intestate in Multnomah County on April 4, 1926, leaving surviving him as his only heirs at law his widow, Pearlettie A. Dahlhammer, his son George and his daughter Edith.

On June 15, 1927, the widow, Pearlettie A. Dahlhammer, married Bert E. Boice. After this marriage, the title to both tract No. 1 and tract No. 2 was transferred by various conveyances to Bert E. Boice and Pearlettie A. Boice as tenants by the entirety. Pearlettie A. Boice died on October 4, 1943, and thereafter Bert E. Boice claimed to be the owner of both tracts of the Rockwood road property as the surviving tenant by the entirety.

On August 12, 1949, when Bert E. Boice made his last will containing the paragraph quoted above, he apparently believed that he was the sole owner of the said real property and according to appellant's brief, in making the bequests of $2,000 each to George and Edith, he 'was giving to the stepchildren what he believed to be an amount fairly covering whatever interest they might have in the property, because formerly owned by their mother.'

On February 16, 1950, George Dahlhammer and his sister Edith Dahlhammer Roelfs filed a suit in the circuit court for Multnomah county against their stepfather, Bert E. Boice, to impress a trust in their favor upon both tracts of the Rockwood road property. The circuit court entered a decree on November 6, 1951, holding that George and Edith were the owners in fee of tract No. 1 but had no interest in tract No. 2. The case was appealed to this court which held that George had no interest in either tract but that Edith was the owner of an undivided one-half interest in tract No. 1. A more detailed narrative of the transactions concerning this property and the background of this litigation is contained in our opinion in Dahlhammer and Roelfs v. Schneider, 197 Or. 478, 252 P.2d 807.

Bert E. Boice died on November 13, 1952, while the above case was pending on appeal in this court and C. G. Schneider was appointed executor of his estate. Schneider died before the probate was completed and the appellant Leroy B. Skousen was appointed in his stead as administrator with the will annexed.

The executor paid the bequest of $2,000 to George Dahlhammer but filed his final account without paying the like bequest to Edith. Edith objected to the final account because her legacy had not been paid and after a hearing, the circuit court held the legacy valid and ordered that it be paid. From that order this appeal has been taken.

The appellant contends that the legacy to Edith 'is specific and payable only out of a sale of the real property and since the testator did not own the property at the time of his death, the legacy lapsed.'

Legacies are usually classified as general, specific or demonstrative. In re Preston's Estate, 157 Or. 631, 73 P.2d 369, 371, includes an informative discussion of the elements of specific and demonstrative legacies and a definition of each, as follows:

'A 'demonstrative legacy' is a gift of money or other property charged on a particular fund in such way as not to amount to a gift of the corpus of the fund, or to evidence an intent to relieve the general estate from liability in case the funds fails. Nusly v. Curtis, 36 Colo. 464, 85 P. 846, 7 L.R.A., N.S., 592, 118 Am.St.Rep. 113, 10 Ann.Cas. 1134, cited with approval in 28 R.C.L. 292.

'As stated in Walls v. Stewart, 16 Pa. 275, a 'specific legacy' is one 'where the gift is of the fund itself, in whole or in part, or so charged upon the object made subject to it as to show an intent to burden that object alone with the payment, * * * and consequently...