Connertin v. Concannon

• Decision Date: 14 September 1927
• Citation: 122 Or. 387,259 P. 290
• Parties: CONNERTIN v. CONCANNON (CONCANNON ET AL., INTERVENERS.
• Court: Oregon Supreme Court

259 P. 290

122 Or. 387

CONNERTIN v. CONCANNON (CONCANNON ET AL., INTERVENERS.

Supreme Court of Oregon

September 14, 1927

In Banc.

Appeal from Circuit Court, Multnomah County; Geo. Tazwell, Judge.

Suit by Mary A. Connertin against Ellen Frances Concannon, in which Gerald Concannon and others intervened. Decree for defendant and interveners, and plaintiff appeals. Affirmed.

This suit is predicated upon the provisions of a will executed by Ann Connertin, at Portland, Or., on February 27, 1889. There is no controversy as to the facts. By her will, Ann Connertin devised to Mathew Connertin, her husband, for the term of his natural life, all of the real property described in her will. The will further provides:

"I direct that, after the death of said husband, the said real property hereinabove devised shall be apportioned among my said children, Thomas David Connertin and Ellen Frances Connertin, as follows:

"To my said son, Thomas David Connertin, for the term of his natural life, remainder to his heirs, all of said lots 2 and 3 in said block 88, Couch's addition, and also that portion of my said North Twentieth street property which has a frontage of 50 feet on North Twentieth by a depth of 100 feet on J street.

"To my said daughter, Ellen Frances Connertin, for the term of her natural life, remainder to her heirs, all of said North Twentieth street property, save and excepting said 50 by 100 feet devised to my said son.

"I further direct that, should either of my said children die without issue during the lifetime of my said other child the said estate of the child so dying shall descend as a life estate to the survivor of my said children, with remainder to the heirs of such survivor."

Ann Connertin died in 1890. Thereafter, Mathew Connertin died leaving as heirs Thomas David Connertin and Ellen Frances Connertin, the son and daughter mentioned in the will of Ann Connertin. Thomas David Connertin died in California on December 26, 1924, without issue, but he left a widow, Mary A. Connertin, the plaintiff herein. On November 25, 1889 Ellen Frances Connertin intermarried with one John Concannon of Portland, Or., and their children are the petitioners and interveners herein. Upon the death of the son, Thomas David his widow, Mary A. Connertin, brought suit against Ellen Frances Concannon, requiring her to appear and set up any claim which she might have in the real property described in the pleadings, and praying that the plaintiff be declared to be the owner in fee simple thereof, and that defendant have no right, title, or interest therein. From a decree denying the prayer of the complaint, plaintiff appeals and asserts that the court erred in decreeing that defendants and interveners are the owners, respectively, of a life estate and the remainder of the property involved in this suit.

H. Daniel and H. H. Riddell, both of Portland, for appellant.

W. N. Gatens and Frank E. Manning, both of Portland, for respondents.

BROWN, J. (after stating facts as above).

Section 10119, Oregon Laws, provides:

"If any person by last will devise any real estate to any person for the term of such person's life, and after his death, to his or her children or heirs, or right heirs in fee, such devise shall vest an estate for life only in such devisee, and remainder in fee simple in such children."

By virtue of the above provision and the terms of the will in question, before proceeding further we are constrained to hold that Thomas David Connertin received a life estate only in the property involved herein. See, also, Estate of Reinbrecht, 116 Or. 184, 240 P. 223, wherein this court held, in an opinion by Mr. Justice Burnett, that where the testator devises all of his property to his wife for her natural life, and on her death one part to go to his children and the other to the wife's heirs, a life estate only was vested in the wife, notwithstanding the power of the wife to sell and convert the property into personalty. To similar effect are Gildersleeve v. Lee, 100 Or. 578, 198 P. 246, 36 A. L. R. 1166, and Soules v. Silver, 118 Or. 96, 245 P. 1069. Also, see note, 36 A. L. R. 1177; 25 Michigan Law Review, page 215.

Now, as to the devise of testatrix to her son for his natural life, with "remainder to his heirs," 2 Underhill on the Law of Wills, page 883, says:

"The first question, therefore, in the case of a devise to A. for life, with remainder to his heirs or to the heirs of his body, is, 'Whom did the testator intend to describe by the word "heirs"?' "

The terms "heirs," "issue," "descendants," "devisees," and "legatees" are sometimes used in wills in a sense different from their ordinary signification. Moreover, their meaning may be extended or restricted so as to comport with the testator's intent. Gildersleeve v. Lee, supra, and cases there cited; Stubbs v. Abel, 114 Or. 610, 233 P. 852, 236 P. 505, and authorities there noted Page on Wills, 611, 612; 3 Woerner, American Law of Administration, pp. 1411, 1412. As a general thing, the word "issue," as used in wills, means lineal descendants indefinitely. 2 Jarman on Wills, Bigelow's (5th Ed.) p. 440. Again, in Gannon v. Peterson, 193 Ill. 379, 62 N.E. 210, 55 L. R. A....