Glover v. Glover

• Decision Date: 12 June 1923
• Citation: 108 Or. 61,215 P. 990
• Parties: GLOVER v. GLOVER ET AL.
• Court: Oregon Supreme Court

215 P. 990

108 Or. 61

GLOVER v. GLOVER ET AL.

Supreme Court of Oregon

June 12, 1923

In Banc.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Suit by George Glover against John P. Glover and others. Demurrer to the bill was sustained, and plaintiff appeals. Affirmed.

This is an appeal by plaintiff from a judgment sustaining a demurrer to a bill in equity filed on November 19, 1920, in a suit wherein he makes his brothers, sisters, nephews, and nieces defendants.

Philip Glover died in Marion county, Or., on July 8, 1917, being then the owner of a donation land claim consisting of 317 acres situate near Sublimity, in Marion county, Or. At the time of his death his next of kin and heirs at law were Delilah Glover, widow, Frank Glover, Henry Glover, John P Glover, Arthur Glover and George Glover, sons, Amelia G Conick and Ellen G. Lambert, daughters, and Louis Loomis Amelia Rankin, Eugene Loomis, Florence Graham, and Chester Loomis, grandchildren, they being children of Louisa J Loomis, a deceased daughter of decedent.

On July 16, 1917, the last will and testament of Philip Glover was admitted to probate. By that instrument the testator bequeathed to the children of his deceased daughter the sum of $5. To his son Henry Glover he bequeathed the sum of $100. His donation land claim he devised as follows: To Frank Glover, 39.04 acres; to Arthur Glover, 40.15 acres; to John P. Glover 39.16 acres; to Amelia G. Conick, 40.20 acres; to Ellen G. Lambert, 60 acres; to George Glover, 100 acres--the foregoing devises being conditioned that each devisee should pay to Henry Glover $100 in cash. To Delilah Glover he bequeathed all of his personal property, and he gave to her a life estate in the whole of his real property.

The complaint avers that immediately after the probate of the will of Philip Glover his widow elected to reject the provisions of the will in her favor; that she filed in the probate court a petition in which she alleged that she had elected to claim 20 acres of the devised lands immediately surrounding the buildings on the donation land claim of Philip Glover, as an exempt homestead, and prayed that the lands thus claimed be surveyed and set off as her individual property; that on January 26, 1918, an order was entered setting off 20 acres to Delilah Glover as her individual property. The complaint further avers that the homestead, as surveyed and set off, took from the 100-acre devise to plaintiff 6 1/2 acres, and from the 60-acre devise to Ellen G. Lambert 13 1/2 acres. It is further alleged that in March 1920, Delilah Glover died intestate, leaving as her heirs at law the parties to this litigation. The plaintiff prays a decree of the court, entitling him to compensation as a disappointed beneficiary under the will herein described for the loss from his devise of the 6 1/2 acres set off as a part of the homestead to his mother, "and that plaintiff be so compensated by decree to him of the ownership of said 6 1/2 acres, or by sequestration of the value of the estate willed to said Delilah Glover and rejected by her, and that in the event such estate is insufficient, the defendants be required to contribute the deficiency pro rata," and for further relief.

To this complaint the defendants demurred upon the ground of the failure of the complaint to state facts sufficient to constitute a cause of suit, and on the further ground that "this court has no jurisdiction of the subject-matter."

From the ruling of the court sustaining the demurrer, the plaintiff appeals.

Smith & Shields, McNary, McNary & Keyes, and E. M. Page, all of Salem, for appellant.

W. C. Winslow, of Salem, for respondents.

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

This lawsuit arises out of the widow's rejection of her husband's will and the enforcement of her legal rights to the family homestead.

The plaintiff asserts that the donor intended equality. "Equality is equity." However, it was the testator's privilege to say what, if any, portion of his property should be given to the plaintiff.

In the case at bar, the will shows on its face that the testator did not intend to treat his heirs at law equally. Moreover, the dissatisfied plaintiff seems to have been favored by his father's will above all others. To his grandchildren, the children of his deceased daughter, Louisa J. Loomis, the testator gave $5. To Henry Glover, he bequeathed $100 and provided that each of those to whom he devised lands should pay to his son Henry the sum of $100. To Frank Glover, Arthur Glover, and John P. Glover, sons, and to Amelia G. Conick, a daughter, he devised tracts of land consisting of about 40 acres of his donation land claim. To his daughter Ellen G. Lambert, he devised a tract containing 60 acres. On this tract of land was situate the dwelling house in which the donor and his wife resided. It was a part of the family homestead, and from this tract the greater portion of the homestead was carved. To George Glover, plaintiff herein. the testator devised 100 acres of land, and from this tract 6 1/2 acres of the homestead were taken.

The complaint discloses the action of the widow in the probate court in the matter of her election. It shows that W. J. Culver was the duly appointed, qualified, and acting executor of the estate of Philip Glover; that he filed his final account and published notice, as required by law, of a hearing thereof; that an order was made on September 23, 1920, allowing his account and closing the affairs of the estate; and that the county court made an order distributing to the heirs at law of Philip Glover the personal property rejected by the widow.

In the construction of this will, it is our task to ascertain the testator's chief intent and to execute that intent with a minimum disturbance of the general plan outlined by his written will. Disston's Estate, 257 Pa. 537, 101 A. 804, L. R. A. 1918B, 62.

A statutory homestead must be the actual abode of the family, or some member thereof, and, in no instance, shall be reduced to less than 20 acres if not located in a town or city or laid off into blocks. Sections 221, 222, L. O. L.

The widow's right to have the 20 acres described in the complaint set apart to her under the statute is paramount to the right of the testator to dispose of the same by will. Wycoff v. Snapp, 72 Or. 234, 143 P. 902; In re Frizzell's Estate, 95 Or. 681, 188 P. 707; Leet v. Barr et al., 104 Or. 32, 202 P. 414, 206 P. 548.

In all cases it is presumed that a testator intends to devise his own lands alone. However, in the case at bar, Philip Glover, by express language, undertook to dispose of all of his real property, including the family homestead, as well as his wife's dower.

A well-supported general rule in the construction of the testator's will is that he is presumed to know the law, and that his widow might lawfully exercise her right to elect to take against his will. 28 R. C. L. § 193; Disston's Estate, supra; Vance's Estate, 141 Pa. 201, 209, 21 A. 643, 12 L. R. A. 227, 23 Am. St. Rep. 267; Crocker v. Crocker, 230 Mass. 478, 120 N.E. 110, 5 A. L. R. 1617; Upham v. Emerson, 119 Mass. 509, 513; Sawyer v. Freeman, 161 Mass. 543, 547, 37 N.E. 942.

The interest which a widow takes in the estate of her deceased husband is not in the nature of a debt against the estate. Dunshee v. Dunshee, 263 Ill. 188, 104 N.E. 1100.

This is not a case wherein the property given to the widow by the testator's will has been used to compensate disappointed beneficiaries whose gifts were diminished or extinguished in order to satisfy the widow's rights to a homestead, and who, by reason thereof, are calling upon others taking similar interests to contribute.

We held, in Bristow v. Jennings, 105 Or. 1, 207 P. 863, that--

"If the widow elects to take under the will, she relinquishes and waives her dower right, and, on the other hand, if she elects to take the right given her by the statute, thereby renouncing the will, she retains the benefits arising out of those rights, and the property donated to her under the will is applied to compensate the beneficiaries under the will who may be disappointed as a result of her election. 1 Pomeroy's Eq. Juris. (4th Ed.) §§ 468, 469, 517."

In Pace v. Pace, 271 Ill. 114, 110 N.E. 878, the court said:

"A provision in favor of a widow is in legal effect only an offer on the part of the testator to purchase her statutory interest in the estate for the benefit of the estate, and where she renounces the

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