Imbrie v. Hartrampf

• Decision Date: 31 May 1921
• Citation: 198 P. 521,100 Or. 589
• Parties: IMBRIE v. HARTRAMPF.
• Court: Oregon Supreme Court

198 P. 521

100 Or. 589

IMBRIE v. HARTRAMPF.

Supreme Court of Oregon

May 31, 1921

Department 2.

Appeal from Circuit Court, Washington County; Geo. R. Bagley, Judge.

Suit by Ralph Imbrie against A. J. Hartrampf. Decree for plaintiff and defendant appeals. Affirmed.

The purpose of this suit is to enforce specific performance of a contract under which the plaintiff argeed to sell, and the defendant agreed to purchase, 166 acres of land situated in Washington county, Or. The contract expressly provides that in the event the plaintiff is unable to convey a marketable title in fee simple to the premises, free from all incumbrances, then the defendant is relieved from making payment for the land.

The defendant has refused to perform the contract and to make payment of the purchase price of the land, upon the sole ground that plaintiff's title is not marketable. The complaint fully sets forth all facts upon which the defendant's objections to the title are based. The defendant interposed a demurrer to the complaint, which was overruled. Defendant refusing to plead further, a decree was passed in favor of plaintiff. Defendant appealed.

The defendant has no disposition to evade the performance of his contract, and is in fact anxious to effect a purchase of the property upon the basis of the contract, provided the plaintiff is able to convey unto him a marketable title. The land, title to which is in controversy, was owned by Robert Imbrie, in fee simple, and free from all incumbrances at the time of his death, which occurred on January 5, 1897. The defendant raises no question as to the validity of the title of Robert Imbrie, the ancestor of the plaintiff, under whom plaintiff claims to have derived title. Robert Imbrie left a will, which was duly admitted to probate, and the estate was regularly closed. By the third paragraph of the will he bequeaths and devises certain property to James A. Imbrie. By the fourth paragraph he gives to two of his daughters certain sums of money. By the fifth to his children Lizzie Freeman and Ella Williams certain sums of money. In the sixth he bequeaths certain property to James A. Imbrie. Paragraph 7 of the will is as follows:

"I give, bequeath and devise, to my son Ralph Imbrie, all the land that I now own in and being a part of the donation land claim of Caleb Wilkins and wife, and being the tract of land purchased by me from William L. Wilkins, and being in township 1 north, range 2 west, Will. Mer., in Washington county, Oregon, subject to the following restrictions to wit: sad land shall not in whole or part be sold or mortgaged until the said Ralph Imbrie is forty years of age, nor subject to his debts and should he sell or mortgage it, or any part of it, before that time, all his interest in said land shall cease and terminate, and said land shall descend to his children, if he then have any, and if not, then to all his brothers then living. This devise to be accepted and received by him in full of any indebtedness to him, except five hundred dollars. The incumbrance upon his land to be paid out of my estate."

In the eighth paragraph of the will he devises to his son James A Imbrie in fee simple a tract of land. By the ninth he devises to his son T. R. Imbrie in fee simple a certain tract of land. By the tenth paragraph he gives, bequeaths, and devises all of the rest, residue, and remainder of his property, real and mixed, to all of his children, or to the children of any deceased child. Paragraph 12 of the will is as follows:

"I further bequeath, devise and direct that should any of the above-named devisees die without leaving lineal descendants, children or grandchildren, then in that case all of the property above devised to such devisee shall go in equal shares to his or her brothers and sisters then living, or to the children of any brother or sister then deceased, by right of representation."

The plaintiff did not, either in whole or in part, sell or mortgage said real property prior to arriving at the age of 40 years, nor permit the same to become subject to his debts. On and prior to January 29, 1920, the plaintiff secured deeds of conveyances from all of the children and grandchildren of Robert Imbrie, deceased, of all their interest in the land except a conveyance from plaintiff's own child, who is a minor.

M. B Bump, of Hillsboro, and D. D. Bump, of Forest Grove, for appellant.

W. G. Hare, of Hillsboro (Hare, McAlear & Peters, of Hillsboro, on the brief), for respondent.

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

This controversy arises out of the construction of paragraphs 7 and 12 of the will, and as to the estate or interest in the real property thereby devised to the plaintiff. It is the contention of the defendant that the provisions of the paragraphs of the will referred to vested in plaintiff only a life estate, with the remainder over to his children or grandchildren living at the time of his death; and in case he died "without leaving lineal descendants, children or grandchildren," then in such case only does title to the property pass to the brothers and sisters.

It is a cardinal principle of law that in construing a will the intention of the testator is the guide. If such intention can reasonably be ascertained it controls the disposition of his property. Jasper v. Jasper, 17 Or. 590, 22 P. 152; Love v. Walker, 59 Or. 95, 107, 115 P. 296; Kaser v. Kaser, 68 Or. 157, 137 P. 187; Beakey v. Knutson, 90 Or. 574, 174 P. 1149, 177 P. 955.

By paragraph 7 of the will, Robert Imbrie devised to his son, the plaintiff Ralph Imbrie, the land in question, subject to the restrictions that the real estate should not be sold or mortgaged until Ralph Imbrie was 40 years of age, nor be subject to his debts. If he had sold or mortgaged any part of it, all his interest in the land would have ceased and the land would have descended to his children, if he had any, and, if not, then to all his brothers then living. This paragraph of the will provided that this devise was to be accepted and received in full payment of the indebtedness of the testator to Ralph Imbrie, except $500. The incumbrance upon his land was to be paid out of the testator's estate. Had it been the intention of the testator to devise a life estate to his son Ralph Imbrie, it would have been the most natural thing for whoever drafted the will to have used the words "during his natural life," or words of like import. A devise of real property is deemed to be a gift of all of the testator's estate in the premises devised, "unless it clearly appears from the will that he intended to devise a less estate or interest." Section 10121, Or. L. Section 10124, Or. L., provides 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."

The provision of the will that Ralph Imbrie should not sell or mortgage the land until he became 40 years of age clearly indicates that after that time he could dispose of it at his pleasure. The provision for the payment of the incumbrances on the land from the estate indicates that it was the intention of the testator to pass a clear title to his son. The specifications indicate that no other restrictions upon the title were intended by the testator. The language of the will in question is entirely different from that used in the will construed in Love v. Walker, supra, and Love v. Linstedt, 76 Or. 66, 147 P. 935 Ann. Cas. 1917A, 898, cited and relied on by defendant. In this state the term "heirs," or other words of inheritance, are not necessary to create or convey an estate in fee simple. Section 9847, Or. L.

It is clear that by the seventh paragraph of the will Robert Imbrie devised the land to his son Ralph Imbrie, in fee, subject to certain restrictions enumerated in that part of the will. Applying the maxim, "Expressio unius est exclusio alterius," it would not occur to one by the reading of the will, when taking it by its four corners, that it was the intention of the testator to include or apply other restrictions or limitations to take effect after his decease. Under any suggested construction of the will when taking into consideration paragraph 12, the estate devised to Ralph Imbrie may last forever, as he may not "die without leaving lineal descendants, children or grandchildren." Therefore it is safe to start with the premise that Ralph's estate is a fee.

It is a well-established 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 land cannot be taken away or diminished by any subsequent vague or general expression of doubtful import, or by any inference deducible therefrom,7 that may be repugnant to the estate given. Irvine v. Irvine, 69 Or. 187, 190, 136 P. 18; Roberts v. Roberts, 140 Ill. 345, 29 N.E. 886; Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12; 2 Underhill on Wills, § 689; 2 Alexander, Com. on Wills, § 931.

It is noticed that by the provisions of paragraph 7, the devise to Ralph was conditioned upon its being accepted and received by him in full of the testator's indebtedness to him, with the exception of $500. While the amount of the indebtedness is not disclosed by the record, it would not seem that the father in the liberal disposition of his bounty to his son as manifested by the will, would devise a title in fee to land for a consideration in one part of the will and take it away or diminish the title, debase the fee as it is usually termed, in another part. It would be inequitable for him to attempt to do so, and a construction of the will which would effectuate such a result would be...