In re Gulick's Estate

• Decision Date: 19 June 1945
• Citation: 159 P.2d 817,176 Or. 610
• Parties: IN RE GULICK'S ESTATE GULICK <I>v.</I> NELSON
• Court: Oregon Supreme Court

176 Or. 610

159 P.2d 817

IN RE GULICK'S ESTATE GULICKv.

NELSON

Supreme Court of Oregon.

Argued May 9, 1945.

Appeal dismissed June 19, 1945.

Wills

1. Where proponent of will admitted to probate did not appeal from that part of circuit court's decree which reversed that part of probate court's order which revoked letters of administration, a decree more favorable to proponent than that of circuit court would be unwarranted.

Wills

2. An order admitting a will to probate in common form is not appealable since such order does not prevent a contest or decree resulting therefrom.

                  See 28 R.C.L. 367
                

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Lane County.

G.F. SKIPWORTH, Judge.

Proceeding in the matter of the estate of Emma A. Gulick, deceased. From an order of the Probate Court which revoked the letters of administration which had been issued to F.A. Gulick and admitting a document as deceased's will, probate of which was sought by Jennie T. Nelson, and appeal was taken to the Circuit Court which reversed that part of the order of the Probate Court revoking the letters of administration, but affirmed the order and decree in so far as it admitted the document to probate. From the decree of the Circuit Court, F.A. Gulick appeals.

APPEAL DISMISSED.

D.T. Bayly, of Eugene, for appellant.

No appearance for respondent.

KELLY, J.

Mrs. Emma A. Gulick died on the 6th day of February, 1941, in Lane County, Oregon, while possessed of real and personal property in said county. Of kindred, entitled to inherit from her, only her husband F.A. Gulick survived her.

On the 15th day of February, 1941, upon a petition stating, among other things, that she died intestate, letters of administration were issued to her husband by the county court of Lane County sitting in probate.

On the 24th day of October, 1941, the final account of her administrator was approved and said administrator discharged.

On the 16th day of February, 1943, a petition was filed in said probate court of Lane County by Mrs. Jennie T. Nelson, reciting, among other things, that since the said letters of administration were issued and the order of final settlement of said estate entered, a last will and testament of said Emma A. Gulick, deceased, had been found. The document so presented is dated February 19, 1930.

By the terms of the will thus presented, Jennie Nelson, a sister of decedent, is given the decedent's jewelry, linens, bedding, furniture and other personal effects of every kind and description.

The rest, residue and remainder of decedent's property, real and personal and mixed is devised and bequeathed to The First National Bank of Pendleton, Oregon, in trust, to be held, managed, controlled and distributed as in said will directed.

Authority is expressly given to said trustee, if in its judgment the best interests of the estate may be served thereby, to convert any of the property thereof into another or different class of property without court order or court process.

The will directs that said trustee for a period of ten years after the death of testatrix shall set apart the net income from said trust fund and invest and reinvest the same. At the expiration of ten years from the date of decedent's death, said fund of accumulated income shall be divided, one-half thereof to decedent's husband, Fred Gulick, if he then be living and unmarried and the remaining half to be divided share and share alike between decedent's four nieces, children of her sister Jennie Nelson or their survivors; and if said Fred Gulick then be deceased, or married, all of said fund shall be divided equally between said nieces or their survivors.

The third and fourth clauses of paragraph IV of said will are as follows:

"(3) I further will and direct that after the division of the fund accumulated from the trust income as hereinabove provided, my Trustee shall thereafter annually divide the annual net income from said trust in the following manner, to-wit: One-half to my said husband, as long as he shall live and remain unmarried, and the balance share and share alike between my said four nieces, or their survivors, and that such annual division of net income from said trust shall thereafter continue as long as my said husband shall live, or until he shall remarry, and thereafter, that is to say, after the death or remarriage of my husband, said annual net income from said trust shall be divided share and share alike between my aforesaid nieces, or their survivors, and until this trust shall terminate in the manner hereinafter provided.

(4) I further will and direct that when the youngest survivor of my said nieces shall have become 30 years of age, and if my husband shall then be dead or remarried, then said trust shall forever terminate and upon the termination of said trust, I will and direct that the property thereof shall then and there be divided between my four said nieces, share and share alike; and if any of my said nieces shall be then deceased, and leave heirs of the body surviving her, then said heirs of said deceased niece shall take their mother's share by representation; and I further will and direct that if any of my said nieces shall then be deceased, and leave no heirs of the body surviving her, then my surviving nieces shall take their deceased sister's share, share and share alike."

Based upon said last mentioned petition, a hearing was had by said probate court wherein affidavits of purported attesting witnesses to said alleged last will and testament identified photostatic copies attached to said affidavits as copies thereof. Said attesting witnesses did not testify in person.

At the hearing upon said last mentioned petition, testimony was given tending to prove that two other wills were executed by Emma A. Gulick, deceased, sometime subsequent to the 19th day of February, 1930, neither of which was produced. The date of the alleged execution of one was fixed by witness Alma Camp as being in the year 1936, and the date of the alleged execution of the other was given by witness Lilly League as being in the year 1940. Alma Camp and Lilly League each testified to having been an attesting witness to the last mentioned wills respectively.

The probate court of Lane County entered an order revoking the letters of administration issued as...