Fields v. Fields

• Decision Date: 13 October 1931
• Citation: 139 Or. 41,3 P.2d 771
• Parties: FIELDS et al. v. FIELDS et al. [*]
• Court: Oregon Supreme Court

3 P.2d 771

139 Or. 41

FIELDS et al. v. FIELDS et al. ^[*]

Supreme Court of Oregon

October 13, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Suit by Cornelia Fields, a minor, and others, by Edward J. Clark guardian ad litem, to construe the will of Lewis Russell Fields, deceased, wherein Judith Scott Walter filed a cross-complaint. Demurrers to both complaints were filed by Arthur Lewis Fields, individually and as administrator of the estate of Lillie Maud Fields, deceased. From a decree sustaining the demurrers, plaintiffs appealed, and the cross-complainant cross-appealed.

Affirmed.

This suit involves the construction of the last will and testament of Lewis Russell Fields, deceased, made and executed by him on December 17, 1913. The paragraphs the subject of litigation are as follows:

"2. I give and bequeath to my sons, Leroy Russell Fields and Arthur Lewis Fields, the sum of One Dollar each.

"3. I give, devise and bequeath to my wife, Lillie Maud Fields all the rest, residue and remainder of my property, both real and personal, of whatever description and wherever situated.

"4. It is my wish and desire that upon the death of my said wife, Lillie Maud Fields, the remainder of my property devised and bequeathed to her by me that shall be in her possession at the time of her death shall be divided in equal shares between my sons, Leroy Russell Fields and Arthur Lewis Fields, and that after my death my said wife shall provide by the terms of her last will and testament for such equal division of such remaining property between my said two sons, their heirs and assigns forever."

By the fifth clause of the will, the testator appointed his wife and their son Leroy executrix and executor respectively.

At the time the will was executed, the son Leroy had intermarried with one Judith Scott. It appears that Leroy and Judith Scott Fields, having no children born to them, in 1923 adopted Cornelia and Margaret Fields, who at the time of the filing of the complaint herein were minors of the age of eight years, and that, in 1926, they adopted Leroy Russell Fields Jr., seven years of age when the suit was commenced.

At paragraph 10 the complaint avers: "That close ties of family affection, confidence and respect at all times existed between all members of the Fields families, including their spouses and the said adopted children and their grandparents by adoption; *** that Lillie Maud Fields, wife of said Lewis Russell Fields, owned at all times in her own right the residence property where for many years she had lived with her husband; that the net income from the properties received from the estate of Lewis Russell Fields, deceased, was approximately $385 per month, and she had no occasion to and did not consume any part of said principal during her lifetime."

Lewis Russell Fields, the testator, died on September 8, 1924 leaving an estate of approximately $54,000. The son Leroy died on July 4, 1927, leaving his property, aside from a small bequest to his children, to his widow. In February, 1930, Lillie Maud Fields, widow of the testator, died intestate, whereupon Arthur Lewis Fields, their only living child, claimed her estate as her only heir at law. The adopted children of Leroy, the deceased son, filed a suit wherein it was asserted that the proper construction of the will of their grandfather by adoption created a trust whereby Lillie Maud Fields, his widow, possessed a beneficial life estate only in the testator's property, the residue passing under the trust for the use and benefit of their sons, Arthur Lewis Fields and Leroy Russell Fields, or, in the event of the death of either son during her lifetime, then for the use and benefit of the legal heirs of such deceased son as to his share. By reason of such alleged trust, the children by adoption claim one-fourth of the personal property and one-half of the real property possessed by the testator's widow at the time of her death. Judith Scott Walter, formerly Judith Scott Fields, widow of Leroy Russell Fields, filed a cross-complaint predicated on the theory that the will of Lewis Russell Fields created a vested remainder in his two sons, Leroy and Arthur, and that upon the death of Leroy his vested remainder passed, under his will, to her. Arthur Lewis Fields, individually and as administrator of the estate of Lillie Maud Fields, demurred to both complaints upon the ground that the definite language of the third clause of the will of his father, standing alone, was sufficient to vest in his father's widow a fee or absolute title. The trial court sustained the demurrer, and the plaintiffs have appealed to this court.

Edward J. Clark, of Portland, for appellants.

Paul C. King, of Portland, for cross-appellant.

Andrew Koerner, of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for respondents.

BROWN, J.

The issue presented here concerns the intention of the testator in the disposition of his property as evidenced by his last will and testament.

The plaintiffs claim that the estate bequeathed and devised by paragraph 3 of the testator's will was subsequently diminished and cut down by a later provision of the will. Conversely, it is contended by the defendants that the testator neither intended to cut down, nor did cut down or debase, the fee-simple estate willed to his wife.

In the interpretation and construction of a will, the cardinal rule is to ascertain the intention of the testator from the four corners of the instrument, giving effect, if possible, to every sentence, clause, and word. When so ascertained, the expressed intention, if legal, is the law of the will, the supreme test, the controlling factor. See Thompson Construction of Wills, § 41. To like effect, see Gildersleeve v. Lee, 100 Or. 578, 198 P. 246, 36 A. L. R. 1166, Roots v. Knox, 107 Or. 96, 212 P. 469, 213 P. 1013, Closset v. Burtchaell, 112 Or. 585, 230 P. 554. Among the many decisions of this court declaring the importance of the foregoing rule are Bilyeu v. Crouch, 96 Or. 66, 189 P. 222, and Stubbs v. Abel, 114 Or. 610, 233 P. 852, 236 P. 505. Moreover, when the provisions of a will are susceptible of conflicting interpretations, the extraneous circumstances accompanying its execution may be shown. See the authorities collected in Stubbs v. Able, supra.

The respondents herein assert that the holding of this court in Irvine v. Irvine, 69 Or. 187, 136 P. 18, 19, controls the disposition of this suit. In that case the court, speaking through Mr. Justice Moore, wrote: "It is a well-recognized rule that where an estate in fee is given in one clause of a will in clear and explicit terms, the interest which the devisee thus obtains in the lands cannot be taken away or diminished by any subsequent vague or general expression of doubtful import, or by any inference deducible therefrom, that may be repugnant to the estate given. Underhill, Wills, § 689; McIsaac v. Beaton, 3 Ann. Cas. 615, note; Mee v. Gordon, 187 N.Y. 400, 80 N.E. 353, 116 Am. St. Rep. 613, 10 Ann. Cas. 172; Lohmuller v. Mosher, 74 Kan. 751, 87 P. 1140, 11 Ann. Cas. 469."

With reference to the cutting down of a gift, 1 Underhill on the Law of Wills says, at section 358: "Where an absolute gift is given in clear and expressive, or, as sometimes expressed, in positive and decisive language, the rule of construction is that the interest thus given shall not be taken away, cut down, limited or diminished by subsequent vague and general expressions. In other words, any subsequent expression of intention of the testator must, in order to limit the prior gift, be equally clear and intelligible, and indicate an intention to that effect with reasonable certainty."

In support of the foregoing statement, see the many authorities cited by the author in note 3, p. 487.

That the provisions of paragraph 3 of the testator's will conveyed a fee-simple title to Lillie Maud Fields, his wife, is fully established by our Code and by a number of court decisions.

In the case of Lytle et al. v. Hulen et al., 128 Or. 483, 275 P. 45, the court, speaking through Mr. Justice Bean, said at page 506 of 128 Or., 275 P. 45, 52: "Under our statute (Or. L. § 9847), the term 'heirs,' or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; and any conveyance of any real estate passes all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms of the grant. Ruhnke v. Aubert, 58 Or. 11, 113 P. 38; Tone v. Tillamook City, 58 Or. 385, 114 P. 938; Love v. Walker, 59 Or. 95, 105, 115 P. 296; Irvine v. Irvine, 69 Or. 189, 136 P. 18."

In his work on "Construction of Wills," Mr. Thompson says, at section 358: "Where an estate is created in one part of a will in clear and intelligible language, the estate can not be limited or cut down by subsequent vague and unintelligible words; and when a fee is devised by one clause of the will, and other portions or clauses are relied upon as limiting or qualifying the estate thus given, they should be such as show a clear intention to thus qualify the estate granted. *** Where, in the same clause, a general devise of real estate is coupled with a general bequest of personal property, such fact sufficiently indicates an intention to devise a fee in the land."

From the foregoing, it is obvious that a devise which, standing alone, would create an estate in fee simple, may be limited to a life estate only by the use of words in the will which make it appear that such devise was intended to convey an estate for life only.

According to the theory of the plaintiffs herein, the testator by his will, in declaring it to be his "wish and desire" that, "upon the death of my said wife,...