In re Miller's Estate

• Decision Date: 16 March 1926
• Citation: 117 Or. 399,244 P. 526
• Parties: IN RE MILLER'S ESTATE. v. MILLER ET AL. MILLER
• Court: Oregon Supreme Court

244 P. 526

117 Or. 399

IN RE MILLER'S ESTATE.

MILLER v. MILLER ET AL.

Supreme Court of Oregon

March 16, 1926

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Final accounting of George H. Miller, administrator of estate of John Miller, also known as Johannes Miller, deceased, to which Henry Miller and others filed objections. From an order of distribution of assets, John W. Miller appeals. Affirmed.

Maurice W. Seitz, of Portland, for appellant.

Dan. E Hardin, of Vancouver, Wash. (Crass & Hardin, of Vancouver Wash., on the brief), for respondents.

Bruce C. Curry, of Portland, for administrator.

BEAN J.

John Miller died in Portland, Or., on January 29, 1922, leaving a last will and testament. During his lifetime he had been married three times. There was no issue of the first marriage. His second wife's name was Catherine Miller. She died about the year 1874, and there were born as the issues of said marriage petitioners Henry Miller, John S Miller, and Katherine Marie Albert. Subsequent to the death of the mother of these petitioners, John Miller, the deceased, remarried; his third wife's name being Alice Miller, the person named as the beneficiary in his will. There were born as the issue of said third marriage of John Miller to the said Alice Miller the following children: Adam Miller, Katie Miller Repp, Dora Miller Schwabenland, George Miller, and John W. Miller; all being of legal age.

By his will, after making certain nominal bequests to his children by his second and third wives, he devised all of the remainder of his estate, both real and personal, to his third wife, Alice Miller. This will was executed on September 8 1916. Subsequent to the execution of this will, and about three years prior to the death of the testator, Alice Miller died. After the death of John Miller the said will was admitted to probate and letters of administration with the will annexed were granted to George H. Miller, who proceeded in the ordinary course to administer said estate and upon conclusion thereof filed his final account asking to be discharged, and for the usual order of distribution, praying that the estate be distributed to the lineal descendants of Alice Miller.

Objections to his final account were filed by the children of the second wife of the testator; the contention of the objectors being that, owing to the death of Alice Miller, prior to the death of the testator, the devise to Alice Miller thereby lapsed, and the estate should be distributed to the heirs of the testator, as though no will had been made. The objections thus filed were sustained by the probate court and it is to review that order that this appeal is taken. The contention of the appellant is, that under the laws of the state of Oregon the distribution should be made to the lineal descendants of Alice Miller or to her estate.

Section 10103, Or. Laws, is as follows:

"When any estate shall be devised to any child, grandchild, or other relative of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real and personal, as such devisee would have done in case he had survived the testator."

It is appellant's contention that the words "other relative" includes the wife of the testator. The respondents maintain the contrary. In so far as we are advised, this court has not passed upon this question.

It has long been settled that, in the construction of wills, the word "relations," or "relatives," includes those who are entitled as next of kin under the statute of distribution. 3 Bouvier's Law Dict. (Rawle's 3d Rev.) p. 2862, title "Relations," citing, 2 Jarm. on Wills, 661; Drew v. Wakefield, 54 Me. 291; In re Spier's Estate, 195 N.W. 430, 224 Mich. 658; In re Sowash's Estate, 217 P. 123, 62 Cal.App. 512; Gallagher v. Crooks, 30 N.E. 746, 132 N.Y. 338; Kimball v. Story, 108 Mass. 382; Esty v. Clark, 101 Mass. 36, 3 Am. Rep. 320, where the term was held not to include a wife. In 7 Words and Phrases, p. 6055, we find: "The word 'relative,' as used in Rev. St. c. 74, § 10, providing that where a relative of the testator dies before the testator, leaving lineal descendants, they take such estate as would have been taken by such deceased relatives, if he survived, means one connected with the testator by blood--a blood relation--and does not include one connected with the testator by marriage only. Elliott v. Fessenden, 22 A. 115, 117, 83 Me. 197, 13 L. R. A. 37, 38; Keniston v. Adams, 14 A. 203, 80 Me. 290."

"Relation" is a very indefinite word, which has often been perplexing to courts. In a broad sense there are relations by affinity as well as by consanguinity, though as used in statutes "a relative" has been held to be one related by blood. 9 R. C. L. p. 25, § 18. As a general rule, if a devisee dies before the testator, the devise lapses. To this rule the statute makes an exception when the devise is to a child, grandchild, or other relative. Or. L. 10103. See Elliott v. Fessenden, 22 A. 115, 83 Me. 197, 13 L. R. A. 37.

In a note to that case, in the latter volume, we read:

"The more common use of the term expresses kindred of blood or affinity, though properly only the former is embraced. Hence, in strict technical sense, it does not include husband and wife, but may include any and every relation that exists in social life, if literally taken; but it has long been settled that a bequest to 'relations' applies to those who, by virtue of the statute of distributions, would take the property as next of kin. Esty v. Clark, 101 Mass. 38 Handley v. Wrightson, 60 Md. 206, Anderson's Law Dict. title 'Relation.' "

In the main case the syllabus is as follows:

"A 'relative' is one connected with the testator by blood and not by marriage only, within the meaning of Rev. Stat. c. 74, § 10, giving lineal descendants the share of a relative of the testator, who is a devisee if he dies before the testator."

Section 10, c. 74, of the Revised Statutes of Maine 1883, reads thus:

"When a relative of the testator, having a devise of real or personal estate, dies before the testator, leaving lineal descendants, they take such estate as would have been taken by such deceased relative if he had survived."

In Keniston v. Adams, 14 A. 203, 80 Me. 290, the Supreme Court of Maine had the same question before it as presented in the case at bar. In the Maine case, Mr. Justice Peters, after quoting their statute (14 A. 204, 80 Me.) at page 294 records...