In re John's Will

• Decision Date: 21 December 1896
• Citation: 47 P. 341,30 Or. 494
• Parties: In re JOHN'S WILL. [1]
• Court: Oregon Supreme Court

47 P. 341

30 Or. 494

In re JOHN'S WILL. ^[1]

Supreme Court of Oregon

December 21, 1896

Appeal from circuit court, Multnomah county; L.B. Stearns, Judge.

Proceeding by James John and others against Philip T. Smith, executor of the will of James John, deceased. From a decree affirming the decree of the probate court, petitioners appeal. Affirmed.

E.B. Watson, W.W. Thayer, and J.N. Dolph, for appellants.

H.B Nicholas and John Catlin, for respondent.

WOLVERTON J.

This proceeding was instituted in the county court of Multnomah county, by the next of kin of James John, deceased, for the purpose of having revoked an order or decree of said court made and entered July 29, 1886, admitting to probate in common form what purports to be his last will and testament. The following is a copy of the will, omitting formal parts and attestation:

"First I do hereby give, bequeath, and devise all money, property, and estate, real and personal, of every kind and nature, of which I may die seised or possessed, or be entitled to at the time of my death, and wheresoever situate or being, to my executors, hereinafter named, to and for the following uses and trusts, that is to say: (1) To sell and convert all my personal property into cash, at private or public sale, as to them shall seem best. (2) To lease all my real estate, except that certain block hereinafter mentioned, upon such terms and for such times and in such parcels as they may deem to the best interest of my estate, but all leases shall terminate fifteen years after the date of my death. (3) After the payment of my funeral expenses and the expenses of administration upon my estate, to expend all other moneys which shall come to their hands upon my death, from the sales of personal property or from rents of real estate, in the erection of buildings for school purposes upon block No. 29, in the town of St. Johns, Multnomah county, state of Oregon, and employing teachers to teach the common-school branches. (4) To sell all real estate, fifteen years after the date of my death, and not before, excepting said block 29 and such other lots and blocks as they may deem necessary for school buildings and grounds, at public or private sale, with or without an order of court, and upon such terms as they may deem advisable, and the proceeds arising from such sales to be delivered to trustees to be appointed as hereinafter provided. If such sales shall not be for cash, then the notes and securities shall be turned over to such trustees. (5) It is my intention that all taxes, claims, charges, and expenses shall be paid out of money coming into the hands of my executors from other sources than from sales of real estate, and that only the remainder shall be used by them in erecting school buildings and supporting schools. (6) The sales of real estate hereinbefore mentioned to be made by my executors shall be made within eighteen years after my death, and not until fifteen years after my death. (7) It is my desire that my estate shall be used in establishing and maintaining free schools or school in the town of St. Johns, and that such schools shall be public, and at all times open to children of the school district which shall embrace the town of St. Johns; and, if my executors shall consider it to the best interests of the children of said town and district, they may act in concert with the directors of said school district in erecting school-houses and maintaining schools, but any and all buildings erected with money belonging to my estate shall belong to my estate, and not to the district, and all moneys expended in maintaining schools shall be expended under the supervision of my executors as long as they shall continue to act, and until the trustees hereinafter mentioned and provided for shall be appointed and qualify.

"Second. I do hereby nominate and appoint my friends Philip T. Smith, of St. Johns, C.W. Burrage and P.A. Marquam, of Portland, executors of this, my last will and testament; and, in case either of them shall fail to accept the trust, I do hereby suggest my friend John Catlin to act as executor in the place of the one failing to accept.

"Third. It is my will that, fifteen years after my death, three trustees be appointed, as follows: One by the judge of the circuit court of the state of Oregon in whose judicial district the town of St. Johns may be in, one by the person who shall be district judge of the United States in whose judicial district the town of St. Johns may be in, and the third shall be appointed by the two persons acting as such judges; and the three persons appointed as such trustees shall be and constitute a board of trustees, and such board shall have the possession, management, and control of all moneys and property by them received from my executors, for the purpose of promoting educational interests in the town of St. Johns, and to that end shall use such money and property so as to establish a permanent fund, the interest only to be used in educational purposes, or so much thereof as shall be necessary. The principal to be loaned only upon real estate security. A portion of the principal, which shall be in excess of fifty thousand dollars, in the discretion of such trustees, may be used in erecting buildings for educational purposes, and in employing teachers.

"Fourth. The persons acting as judges aforesaid may from time to time make rules and regulations for the government of the board of trustees, which rules and regulations shall be binding upon such board, and they may fix the qualifications of such trustees, and determine whether or not they shall give security for the faithful performance of their trusts, and to whom such security shall be given.

"Fifth. It is not my intention to direct the particular branches of education which shall be taught, nor in any way limit the use of the money in promoting certain kinds of education, only I desire that it shall never be used to inculcate the doctrines of any religious sect or denomination, one more than the other.

"Sixth. It is my intention and desire to establish a permanent and perpetual educational fund, to be forever used in promoting education.

"Seventh. Whenever a vacancy shall occur in the board of trustees hereinbefore mentioned, such vacancy shall be filled by appointment, to be made by the persons occupying the positions of judges as aforesaid. Said board to be always kept full, and to consist of three persons, a majority of whom may transact business."

The petition for the revocation of the order of probate is based upon two grounds: First, the want of testamentary capacity of the testator; and, second, the insufficiency of the attempted devise to charitable purposes, as it respects the objects and beneficiaries of the charity and the trustees in whom the power of administering the charity is reposed. The first ground of contest was abandoned at the trial, and the case is here for determination upon the latter ground only.

It is contended by the executor that, the will having been properly executed, and provision made therein for the appointment of executors and the payment of debts, it was properly admitted to probate, and that this proceeding is without merit, even if it be conceded that certain gifts or devises are void and of no effect for any purpose. It is said to be no objection to the probate of a will that some of its provisions are not valid or susceptible of being carried into effect. 3 Redf. Wills, § 3, subd. 22, and Appeal of Baxter, 1 Brewst. 460. Again, it is considered to be well settled that a will, appointing an executor, and making no disposition of personalty, is entitled to probate, whether it contains any disposition of real estate or not. 3 Redf. Wills, § 4, subd 15. By the older English books it was established that, if an instrument be testamentary, and is to operate upon personal property, probate must be obtained, whatever its form, but that a will which clearly respects lands ought not to be probated; while, if the will was concerning both land and personal property, probate was proper, though such probate was without prejudice to the heirs of the land. Schouler, Ex'rs, § 59. The ancient law proceeded upon the theory that there could be no proper testament without the naming of an executor, but modern jurisprudence stands in support of the will whether an executor is nominated therein or not, and yet the nomination of an executor is sufficient to make the instrument a will. It is not uncommon for a testator to make his will for the sole purpose of nominating an executor to administer his estate. A fundamental rule, long established, is that the personal property of a deceased person goes to his personal representatives, while the real estate goes to his heirs at law. At one time it was thought that realty could not be diverted from the channel of inheritance by devise, but that doctrine no longer prevails; so that a person may now dispose of his real as well as personal property by will. Under the old law, it was the province of ecclesiastical courts to assume jurisdiction touching the administration of the goods and chattels of deceased persons, while the English chancery guarded with much jealousy its peculiar jurisdiction over the realty. But by statutory enactments in England, as well as in most of the United States, the discrimination between wills of real and personal property is abolished. Their probate has become a necessary process to the establishment of title to either style of property, and is effectuated by the same method and in the same court. Schouler, Ex'rs, § 59. Accordingly it has been held, under the statutes of this state, that the transfer of the title to the personal property of deceased persons is accomplished through the sole...