In re Holland's Estate

• Decision Date: 03 December 1946
• Citation: 180 Or. 1,175 P.2d 156
• Parties: IN RE HOLLAND'S ESTATE CHAMBERS ET AL. <I>v.</I> STUDEBAKER ET AL.
• Court: Oregon Supreme Court

180 Or. 1

175 P.2d 156

IN RE HOLLAND'S ESTATE CHAMBERS ET AL.v.

STUDEBAKER ET AL.

Supreme Court of Oregon.

Argued November 6, 1946.

Reversed December 3, 1946.

Wills — Construction — Intent

1. In construing a will, the court will occupy as far as possible the position of testator, but court is not authorized to determine what testator intended to say.

Wills — Use of particular words

2. If a word or term is used in a unilateral document such as a will in a sense which is peculiar or individual to testator, it can readily be given his individual meaning provided it can be determined with the required degree of certainty.

Wills — Unorthodox use of words

3. To justify a court in placing an unorthodox meaning upon a term when interpreting a will, it must appear that testator used the term habitually in the unorthodox sense and an occasional or casual use of the term in such sense is insufficient.

Wills — Construction — Intent

4. Evidence intended to show, not the meaning of language of will, but the intention of testator was inadmissible in will construction case.

Wills — Statements of testator

5. Evidence that testator after executing will stated that he would bequeath or had bequeathed several thousand dollars to named person and something to another was inadmissible in will construction case.

Wills — Description of property

6. Devise of testator's residence described by street and house number referred only to house bearing such number and not to another house belonging to testator on the same lot but having a different number, in view of fact that houses retained their separate identities, though second floors thereof were connected by inclosed passageway, description used in will did not in common acceptation include adjoining house and was not used by testator in any sense peculiar to himself, and testator insisted on description used, though repeatedly requested by attorney to produce deed so that legal description could be used.

Wills — Description of property

7. A will may describe realty made the subject-matter of special devise by its street or house number.

Wills — Description of property

8. A description which is definite and unambiguous is sufficient to devise the property described.

Wills — Devise of house — Land

9. A devise of testator's residence by street and house number included not only the house itself, but also as much land as was necessary for beneficial use of the house.

Wills — Complete devise

10. If a devise is incomplete, no amount of evidence can complete it but it should not be deemed incomplete if it can be regarded as complete without doing violence to good sense or to rules governing construction of wills.

Wills — Construction — Punctuation

11. Courts may ignore punctuation found in wills, and where it is clear that a word or expression has been omitted from a will, courts may supply it, provided they are certain of the omitted term.

Wills — Description of property

12. Where testator after devising life estate in residence described as "1516 S.W. 4th Ave.", in next paragraph stated that he devised to named person "1516 S.W. Fourth Avenue", such address was not intended to identify devisee, though separated from devisee's name by a comma, and devise was not incomplete though followed by a comma, but testator thereby devised the remainder interest in the described residence.

                  See R.C.L. Perm. Supp. 6111; devise of "house", "dwelling
                house", or the like, note, 12 A.L.R. 1179; 69 C.J., Wills, §
                1408
                

Appeal from Circuit Court, Multnomah County.

ASHBY C. DICKSON, Judge.

George J. Perkins, of Portland, for Annabelle Chambers, and Mary Bean, residuary devisees and legatees, appellants.

Ernest Cole, of Portland (H.A. Robertson, of Portland, on brief), for Dorman M. Studebaker and Clyde H. Babcock, petitioners for construction of will, respondents.

Fred W. Bronn, of Portland, on brief, for The United States National Bank of Portland (Oregon), as executor of the estate of O.H. Holland, deceased, respondent.

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

REVERSED AND REMANDED.

ROSSMAN, J.

This is an appeal by Annabelle Chambers and Mary Bean, residuary legatees under the will of O.H. Holland, deceased, from a decree of the Circuit Court for Multnomah County, which held that the will devised to Dorman M. Studebaker a life estate, and to Clyde H. Babcock the remainder in Lot 7, Block 145, Portland. The respondents are Studebaker, Babcock and the executor of the deceased's estate. The executor is not a partisan upon the appeal and we shall hereafter refer to Studebaker and Babcock as the respondents. They are not related to the testator. The residuary devisees are his nieces.

This proceeding was instituted by a petition which prayed for a construction of the following part of the will:

"Third: I give, devise and bequeath to Dorman M. Studebaker, a life estate in the residence in Portland, Oregon, that I now occupy on 1516 S W 4th Ave; together with the furniture, as it is in the home at the time of my decease.

"Fourth: I give, devise and bequeath to Clyde H. Babcock, 1516 S.W. Fourth Avenue,

"Fifth: * * *."

Paragraph 7 devised to the appellants the residue of the estate.

Mr. Holland, the decedent, was the owner of Lot 7, Block 145, Portland, which faces 50 feet on Fourth Avenue. In 1875 a previous owner built two houses upon the lot; each faces upon Fourth Avenue. In 1923, when the city renumbered properties, it assigned to one of the houses No. 1516 and to the other No. 1510. Their previous numbers were 324 and 320. Numbers 1516 and 1510 were posted over the front doors of the respective houses and were plainly visible. The circuit court construed the descriptive term, "1516 S W 4th Ave" as the equivalent of Lot 7, Block 145.

The deceased acquired Lot 7, Block 145, in 1925. He signed his will June 29, 1944, and died July 9, 1945.

The respondents claim that the two houses are, in effect, one and that Mr. Holland so regarded them. The appellants refute that contention.

The appellants, besides challenging the admissibility of a part of the testimony which the circuit court permitted one W.W. Graves, a witness for the respondents, to give, contend that paragraphs 3 and 4 of the will devised to the respondents no interest whatever in the land upon which stood the house bearing number 1516. They argue that if paragraphs 3 and 4 bequeathed any interest in the land, then the devise did not extend to all of Lot 7, but only to that part of it which is necessary for the convenient occupancy of the house.

Before delineating the evidence which bears upon that issue, we take note of § 2-218, O.C.L.A., which says:

"For the proper construction of an instrument the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret."

1. When the testator wrote his will he thereby penned a solemn message for the courts of Oregon. He knew, of course, that his message would not be delivered to the probate judge until after his death and, therefore, must have realized the importance of expressing clearly the orders which he wanted to give. Although each word which a person puts into a will signifies to him a definite object, person or other concept, yet words rarely have a single dictionary meaning. Their lack of singleness of meaning is especially marked when they are used in combinations such as sentences and paragraphs. Words need to be interpreted; that is, we need to unpack from them the meaning which their user placed in them. This process of unpacking consists of identifying the person, object or other concept which their user had in mind when he uttered them. The process is no different from interpreting the meaning of a traffic signal given by the driver of the car ahead. When he stretches out his arm to the left he has a definite meaning in mind. Each word which a person employs in a will is associated in his mind with some person, plan or other object. If, as the words flow from his pen, a photographic device could record upon film the procession of persons, objects and other concepts that are passing before his mind, there would be no need for interpretation. We could identify from the film exactly what he had in mind and thus know what he meant. We have, however, no such process. But the legislature has given us § 2-218, O.C.L.A., above quoted, which enables the court so far as possible to fit itself into the place of the person who used the words which are under scrutiny. In an instance like the present its purpose is to enable the judge to know the testator and become acquainted with his family, friends, surroundings and all other circumstances which throw light upon the meaning of the words he used. In this way the court, it is believed, can better extract from each word the meaning which the testator expected it to convey. As was said in Stubbs v. Abel, et al., 114 Or. 610, 233 P. 852, 236 P. 505, the purpose is to enable the judge to fit himself into "the position of the testator, in order to think as he thought, and to understand as he understood." But none of our law empowers the court to determine what the testator intended to say: § 2-216, O.C.L.A.: Hansen v. Oregon Humane Society, 142 Or. 104, 18 P. (2d) 1036; Page on Wills (Lifetime Ed.), § 914; Wigmore on Evidence (3d Ed.), § 2459.

With the above considerations in mind, we shall now review the evidence which is intended to show the meaning of the phrase, 1516 Southwest Fourth Avenue.

The two houses on Lot 7, Block 145, were built for family occupancy. The larger, No. 1516, is three stories high and contains sixteen rooms; the smaller, No. 1510 consisting of two stories and an attic, contains eight rooms. The ground dimensions of the two are different — No. 1516 is 26.3 feet wide, and No. 1510 is 16.4...