Heilig v. Daniel

• Decision Date: 03 November 1954
• Citation: 275 P.2d 854,203 Or. 123
• Parties: George W. HEILIG, Individually and as Administrator of the Estate of Fred Heilig, deceased, Appellant, v. Harry Holls DANIEL and John Wuest, Defendants-Respondents. Peter W. Schwabe, Administrator of the Estate of Kate Donohue Reilly, deceased; Peter W. Schwabe, Administrator of the Estate of Rose Ann Conlon, deceased; Peter W. Schwabe, Administrator of the Estate of James Donohue, deceased; Bridget Heffernan Reilly, individually and as Guardian of Peter James Reilly; Henry Reilly, William Reilly, Mary Reilly O'Toole, Kate Reilly Byrne, Patrick Conlon, Thomas Conlon, Mary Conlon; James Conlon, individually and as Guardian of Anna Conlon, James Conlon, Rose Conlon and Theresa Conlon; Mary Ann Donohue McGarr, John Donohue, Patrick Donohue, Margaret Donohue, John Donohue, Annie Donohue, Bernard Donohue, Christopher Donohue, Thomas Donohue, and Andrew Donohue, Intervenors-Respondents.
• Court: Oregon Supreme Court

Page 854

275 P.2d 854

203 Or. 123

George W. HEILIG, Individually and as Administrator of the Estate of Fred Heilig, deceased, Appellant, v. Harry Holls DANIEL and John Wuest, Defendants-Respondents.

Peter W. Schwabe, Administrator of the Estate of Kate

Donohue Reilly, deceased; Peter W. Schwabe, Administrator of

the Estate of Rose Ann Conlon, deceased; Peter W. Schwabe,

Administrator of the Estate of James Donohue, deceased;

Bridget Heffernan Reilly, individually and as Guardian of

Peter James Reilly; Henry Reilly, William Reilly, Mary

Reilly O'Toole, Kate Reilly Byrne, Patrick Conlon, Thomas

Conlon, Mary Conlon; James Conlon, individually and as

Guardian of Anna Conlon, James Conlon, Rose Conlon and

Theresa Conlon; Mary Ann Donohue McGarr, John Donohue,

Patrick Donohue, Margaret Donohue, John Donohue, Annie

Donohue, Bernard Donohue, Christopher Donohue, Thomas

Donohue, and Andrew Donohue, Intervenors-Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 29, 1954.

Decided Nov. 3, 1954.

John C. Veatch, Portland, argued the cause for appellant. With him on the brief were Veatch, Bradshaw & Veatch, Portland.

David Fain, Portland, argued the cause for defendants-respondents. With him on the brief were Harry Hollis Daniel, Black, Kendall & Fain, and Paul Gerhardt, Portland.

Nicholas Jaureguy, Portland, argued the cause for intervenors-respondents. With him on the brief were Cake, Jaureguy & Hardy, Carter, Cameron & Carter, Portland.

Before LATOURETTE, C. J., and LUSK, BRAND and TOOZE, JJ.

BRAND, Justice.

This suit involves the construction of a testamentary trust. The plaintiff, George W. Heilig, as an individual and as administrator of the estate of Fred Heilig, deceased, seeks a decree directing the defendant trustees to account to the estate of Fred Heilig for all of the assets of the trust, to fix the compensation of the trustees, to award attorneys' fees, to determine the amount of estate taxes if any and to distribute the remainder to the plaintiff as administrator of the estate of Fred Heilig, deceased. Demurrers to the complaint were sustained. The plaintiff declined to plead further and a decree was entered dismissing the complaint, from which decree the plaintiff appeals.

The trust was created by the will of Mary C. Vogt, but to set forth in orderly fashion the relationship of the parties we begin with Daniel Donohue who died in 1881 survived by one son, Patrick Donohue, and three daughters, Ann Donohue, Margaret Catherine Brady and Brigid Carle. Ann Donohue died in 1902 unmarried. Brigid Carle died in 1914 survived by two daughters who died, leaving children now living. Patrick Donohue died in 1927 after the death of testatrix Mary C. Vogt. Patrick Donohue was survived by sons and daughters, the number of whom living at date of his death is unknown. Margaret Catherine Brady, one of the children of Daniel Donohue, died on 29 May 1918 leaving her entire estate to her daughter Mary C. Vogt, her sole heir. Mary C. Vogt executed the will and thereby established the trust which is in question here. The real question in the case arises from the facts now to be set forth.

Mary C. Vogt died on 17 July 1935. Her will was admitted to probate; the estate was duly administered, closed and distributed to the trustees pursuant to the will. The defendants Harry Hollis Daniel and John Wuest are now the trustees. Lucile Vogt Heilig, daughter of the testatrix, was, as will appear, a beneficiary of the trust. She died intestate, without issue, on 28 November 1951, survived by her husband Fred Heilig as her sole heir at law. Fred Heilig died intestate on 14 June 1952 leaving an estate, a part of which, it is asserted, was a claim against the trustees for the remaining assets of the trust estate. Fred Heilig was survived by the plaintiff, his son by a previous marriage and his sole heir at law. Before his death Fred Heilig instituted this suit. Thereafter the plaintiff was appointed administrator of the estate of Fred Heilig deceased and was substituted as party plaintiff in this suit.

With this factual background we turn to the will of Mary C. Vogt, which was executed on 16 August 1934 and took effect at her death on 17 July 1935. The will made certain bequests, among them one of $5 to the testatrix' son-in-law, Fred Heilig, who was the husband of Lucile Vogt Heilig, the daughter of the testatrix. The portion of the will with which we are concerned reads as follows:

'Fourth: I give devise and bequeath unto my Brother-in-law, John Vogt, of Portland, Oregon, and unto Harry Daniel, of Portland, Oregon, all my property and estate of which I die seized, whether real, personal or mixed, in trust however, for my Daughter Lucile Vogt Heilig, the terms of said trust being as follows; (a) Out of the principal and income from my estate, John Vogt and Harry Daniel, shall use as much thereof as they deem necessary for the proper support of my said Daughter Lucile Vogt Heilig, during her lifetime, and upon the death of my said Daughter, then one-half thereof to the heirs of her body or the survivors of them share and share alike, (b) If no survivors of the heirs of the body, the income and the remaining portion of my estate to be divided by said trustees, equally and share and share alike among the blood relations of my deceased mother and myself'.

Turning to clause (a) of the Fourth paragraph of the will we find that Lucile died without any 'heirs of her body'. It is therefore clear that there could be no distribution pursuant to the terms of the trust of the one-half which was to go to the heirs of her body or the survivors of them share and share alike. The appellant claims that

'the entire estate passed to Lucile Vogt Heilig as testatrix's sole heir and that she was not divested of any interest by the terms of the will and, upon her death, the estate passed to her husband and sole heir and from him to appellant. This claim is based upon the grounds (1) that the testamentary trust is void as a violation of the rule against perpetuities; (2) that if the trust be valid, Lucile Vogt Heilig was the sole member of the class, or classes, designated as blood relations of testatrix and her deceased mother and was devised the remainder as well as a life estate, and (3) that, if testatrix intended to exclude Lucile Vogt Heilig as a remainderman, the remaindermen are indefinite and uncertain and the remainder void.'

The question on which we shall base our decision is whether the complaint states a cause of suit. On this issue the plaintiff who claims the entire corpus is opposed by the trustees and by a mighty band of heirs, representatives and descendants of various degrees. The first group consists of six surviving childern of Patrick Donohue who was the brother of Margaret C. Brady who was the mother of the testatrix Mary C. Vogt. They were the sole surviving first cousins of the testatrix Mary C. Vogt and are the nearest blood relations of said testatrix and, it is said, of her mother. All of the other intervenors are the children or grandchildren of deceased brothers or sisters of Margaret C. Brady or are representatives of such persons.

We will first consider whether the trust created by the will was void under the rule against perpetuities. We agree with the plaintiff that a will speaks from the time of the death of the testator unless a contrary intent is manifest from the language of the will or its provisions. Pape v. United States National Bank, 135 Or. 650, 297 P. 845.

The cardinal principle to be applied in construing a will, when construction is necessary, is to ascertain from the entire instrument the expressed intention of the testator. In re Howe's Estate, 190 Or. 592, 227 P.2d 827. Subject to this cardinal principle a liberal construction should be applied in order to discern the testator's true intention. Pioneer Trust Co. v. Thielsen, 199 Or. 206, 258 P.2d 788. We are to ascertain from the testamentary words, construed according to their natural meaning, the intent of the testator and to give effect to that intent unless the same is prohibited by some positive rule of law. Florey v. Meeker, 194 Or. 257, 282, 240 P.2d 1177.

The plaintiff contends that 'Testatrix intended the trust to continue indefinitely for the benefit of such heirs [heirs of Lucile's body] and the trust was created for an illegal purpose and is void.' The rule against perpetuities in its classical form was stated by Gray:

'No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.' Gray, The Rule Against Perpetuities, § 201, 4th ed, 1942.

This is substantially the rule in Oregon. Imbrie v. Hartrampf, 100 Or. 589, 198 P. 521; Closset v. Burtchaell, 112 Or. 585, 230 P. 554; Gratton v. Gratton's Estate, 133 Or. 65, 283 P. 747; Stein v. U. S. National Bank, 165 Or. 518, 108 P.2d 1016.

Lucile was a person in being at the time the interest was created by the will of her mother. If then, the estate vested before or immediately after the death of Lucile, there could be no violation of the rule against perpetuities. The expressed purpose of the will was to care for the testatrix' daughter and to make provision concerning the property on the death of the daughter. But the purpose of the trust established by the will was, we think, more limited. The entire estate was left in trust 'for my Daughter Lucile'. The trustees were authorized to use as much of principal and income as they deemed necessary for the proper support of Lucile during her lifetime. The authority to 'use' principal and income meant to spend or consume it or parts of it for Lucile's benefit. The purpose of the trust as expressed goes beyond mere support. By the Fifth paragraph of the will the trustees were authorized to provide Lucile with funds to enable her to enter into some small business or to attend college. We find no provision in the will which imposes...