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 |
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
Appeal from Circuit Court, Douglas County.
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.
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:
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...
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