Gildersleeve v. Lee

• Court: Oregon Supreme Court
• Writing for the Court: [100 Or. 584] BROWN, J. (after stating the facts as above).
• Citation: Gildersleeve v. Lee, 100 Or. 578, 198 P. 246 (Or. 1921)
• Decision Date: 31 May 1921
• Parties: GILDERSLEEVE v. LEE.

198 P. 246

100 Or. 578

GILDERSLEEVE v. LEE.

Supreme Court of Oregon

May 31, 1921

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Suit by Frank E. Gildersleeve against Robert E. Lee for specific performance of a written contract for sale of land. Case ordered adjudged, and decree dismissed, and the plaintiff appeals. Reversed, and remanded for further proceedings consistent with opinion.

This suit involves the right of plaintiff to convey a fee simple title to real property. It comes here from the court below as the result of litigation between the parties to a real estate contract pertaining to the sale of 200 acres of land. The plaintiff, Frank E. Gildersleeve, instituted a suit for specific performance of a written contract relating to the sale of land, against defendant, Robert E. Lee, the purchaser. The defendant, answering, admits substantially all the allegations of plaintiff's complaint, but alleges as a defense that the vendor has a fee simple title to 120 acres only of the 200 sold, and avers the inability of the plaintiff to convey any greater estate than a life estate in 80 acres of the tract agreed to be conveyed, for the reason that, by will, he became vested with a life estate in the E 1/2 of the N.W. 1/4 of section 11, Tp. 2 south of R. 44 east W. M., and has no lawful right to convey a greater estate.

From the record before us, it appears that on the 6th day of December, 1920, plaintiff and defendant entered into a contract in writing, whereby plaintiff sold and agreed to convey to defendant the N.E. 1/4 of the S.W. 1/4, the N.W 1/4 of the S.E. 1/4, the S.W. 1/4 of the N.E. 1/4, and the E 1/2 of the N.W. 1/4, of Sec. 11, Tp. 2 south of R. 44 east, W. M., in Wallowa county, Or. This contract provides that--

"As the purchase price to be paid for said land defendant has paid to plaintiff the sum of $10,000, the receipt of which is acknowledged * * *, and that, in addition to the payment of said sum so paid, defendant * * * shall assume and agree to pay a mortgage in the sum of $15,000 given to Washington Mutual Savings Bank, a corporation of Seattle, Wash., covering all of said land, and a mortgage in the sum of $10,000 in favor of John Fruitts covering the E. 1/2 of the N.W. 1/4 of said section 11."

The contract also recites that, within a reasonable time from December 6, 1920, and, in any event, within 30 days from said date, the plaintiff shall furnish and deliver to the defendant a complete abstract of title to the above-described land, and that, if such abstract shall show the title to the land to be vested in plaintiff and free from liens, incumbrances, and defects, with the exception of said mortgages, plaintiff shall then execute, acknowledge, and deliver to defendant a warranty deed conveying said land to defendant; that by said deed plaintiff shall convey to and vest in defendant an absolute fee simple title to said lands, subject, nevertheless, to the outstanding mortgage liens, and if plaintiff cannot convey to defendant a fee simple title to said lands, or any part thereof, then plaintiff shall repay to defendant the sum of $10,000, with interest thereon at the rate of 8 per cent. per annum from the 6th day of December, 1920, until paid.

Plaintiff then alleges the various steps taken in complying with the provisions of the contract, including the execution, tender, and attempt to deliver the deed to defendant; that defendant failed and refused to accept or receive the deed, but demanded that plaintiff repay to him the sum of $10,000, with interest; that plaintiff deposited the deed to the lands in court, for the use and benefit of the defendant.

For a defense to the cause of suit alleged in plaintiff's complaint, defendant alleges, among other things, that the abstract mentioned in plaintiff's complaint shows, and the facts are, that one Pearl D. Gildersleeve was the owner of the E. 1/2 of the N.W. 1/4 of said section 11, the same having been conveyed to her by warranty deed bearing date July 29, 1919, duly executed by John Fruitts and Gertie M. Fruitts, his wife; that said Pearl D. Gildersleeve died on or about March 21, 1920, leaving a last will and testament, the material parts of which are as follows, to wit:

"Know all men by these presents: That I, Pearl D. Gildersleeve, being of sound and disposing mind and memory and not acting under duress, menace, fraud or undue influence of any person or persons whatsoever, do make, publish, and declare this my last will and testament, in language following, that is to say:

"I hereby revoke all former wills and codicils by me made.

"I direct my executor hereinafter named, as soon as he shall have funds on hand belonging to my estate, to pay my funeral expenses, expenses of my last illness and all my other just debts.

"I direct and request that my body be decently buried, proper attention being paid to my rank and station in life.

"I give, devise and bequeath to my son, Floyd W. Squibb, being a son by a former marriage, the sum of one dollar ($1), lawful money of the United States.

"I give, devise and bequeath to my son, Edward A. Gildersleeve, and to my daughter, Violet M. Gildersleeve, each the sum of one dollar ($1), lawful money of the United States.

"All the rest, residue and remainder of my property, real, personal or mixed, of whatever the same may consist or wherever the same may be situate, I give, devise and bequeath to my husband, Frank A. Gildersleeve, during his natural lifetime, the remainder over at the time of his death to go to my said children, share and share alike, it being my intention that my said husband shall have the full management and control of all of my said property and to that end he may sell and convey any and all of the property in the usual course of business the same as I could or would do if personally present, and that the proceeds shall be used by him for his comfortable maintenance and the comfortable maintenance, education and support of my said children, the residue as aforesaid at the time of his death to be divided, share and share alike, among my said children, or in the event of the death of any of them, among the heirs of the deceased and survivors, per stirpes. * * *"

Defendant further alleges that, by reason of the facts set forth in the answer, plaintiff has only a life estate in the E. 1/2 of the N.W. 1/4 of said section 11, and the fee simple title thereto is vested in Floyd W. Squibb, Violet M. Gildersleeve, and Edward A. Gildersleeve, subject to said life estate; that, by reason thereof, plaintiff is not the owner in fee simple of the E. 1/2 of the N.W. 1/4 of said section 11, and that he cannot convey to defendant, nor vest in him, a fee simple title to said tract of land, and that the deed described in the complaint will not convey to, or vest in defendant, a fee simple title to said land as required by said contract.

A demurrer was filed by the plaintiff to the new matter alleged in the answer and set forth as a defense to the cause of suit alleged in plaintiff's complaint, which was overruled on the 12th day of March, 1921. The plaintiff refused to plead further, and the case was ordered, adjudged, and decreed to be dismissed.

Plaintiff appeals to this court, alleging error in overruling his demurrer, in dismissing the cause, and in rendering a decree in favor of defendant and against plaintiff for costs and disbursements.

A. S. Cooley, of Enterprise, for appellant.

Daniel Boyd, of Enterprise, for respondent.

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

The pivotal point in this case is the right of the plaintiff to convey a title in fee to the land devised to him by his wife, Pearl D. Gildersleeve. The power of plaintiff to convey a fee simple estate depends upon the terms of the will.

In construing a will, its provisions must be considered together; the words are to be taken in their usual and ordinary sense, unless it appears that they are used in a technical or a special sense, or unless, when applied to the subject-matter, they have a technical or special meaning; and the intention of the testator is paramount and controlling, so far as that purpose is within the law.

It is but the statement of a commonplace rule of law to observe, in the interpretation of the provisions of a will, that the intention of the testator as therein expressed must prevail. The statute of this state commands that all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true interests (intent) and meaning of the testator in all matters brought before them. Or. L. § 10124; Moreland v. Brady, 8 Or. 303, 34 Am. Rep. 581; Shadden v. Hembree, 17 Or. 14, 18 P. 572; Jasper v. Jasper, 17 Or. 590, 22 P. 152; Portland Trust Co. v. Beatie, 32 Or. 305, 52 P. 89; Love v. Walker, 59 Or. 95, 103, 115 P. 296; Kaser v. Kaser, 68 Or. 153, 158, 137 P. 187; Beakey v. Knutson, 90 Or. 574, 174 P. 1149, 177 P. 955; Boehmer v. Silverstone, 95 Or. 172, 174 P. 1176, 186 P. 26; Bilyeu v. Crouch, 96 Or. 66, 69, 189 P. 222.

The controlling rule in ascertainng the meaning of the will of Pearl D. Gildersleeve, to which all technical rules of construction must give way, is to give effect to the true intent and meaning of the testatrix as...