In re Moore's Estate

• Decision Date: 24 October 1950
• Citation: 190 Or. 63,223 P.2d 393
• Parties: In re MOORE'S ESTATE. HINDMAN et al. v. UNITED STATES.
• Court: Oregon Supreme Court

223 P.2d 393

190 Or. 63

In re MOORE'S ESTATE.

HINDMAN et al. v. UNITED STATES.

Supreme Court of Oregon.

October 24, 1950

Argued Sept. 12, 1950.

R. L. Whipple, of Roseburg, argued the cause for appellants. With him on the brief was Dexter Rice, of Roseburg.

John R Brooke, Assistant United States Attorney, of Portland, argued the cause for respondent. On the brief were Henry L. Hess United States Attorney, and Gene B. Conklin and Floyd D Hamilton, Assistant United States Attorneys, all of Portland.

Goldsmith, Siegel & Goldsmith, of Portland, filed a brief as amici curiae.

Before BRAND, Acting Chief Justice, and BAILEY, HAY, LATOURETTE, and WARNER, Justices.

HAY, Justice.

This case presents for consideration the question whether or not the United States of America is competent to take property by devise in the state of Oregon.

Lillie Lela Moore died in Douglas County, Oregon, on May 14, 1940 leaving a will which was admitted to probate in the county court for said county on May 23, 1940. In her will the testatrix, after making several small bequests, devised and bequeathed the residue of her estate, both real and personal, to 'the Government of the United States of America'. The estate was appraised at about $15,000.

On May 14, 1941, the testatrix' heirs at law, who are her nephews and nieces, petitioned said county court to decree that the devise and bequest to the United States is null and void, on the grounds (a) that the United States has no right, power or authority to accept such devise and bequest, and (b) that the United States has not accepted said devise and bequest, 'although a reasonable time to do so has long since elapsed and expired'.

On June 20, 1941, the United States petitioned said court for an order directing the executor of said estate to proceed with the closing of the estate and the distribution of the assets thereof as in said will provided.

On July 11, 1941, the heirs at law answered the petition of the United States, and, for affirmative answer, contested the right of the United States to take under the residuary devise and bequest, upon the same grounds as set forth in the petition of said heirs theretofore filed.

On April 9, 1943, the county court on its own motion transferred the matter to the circuit court for Douglas County. On April 30, 1949, the circuit court entered its decree dismissing the contest of the heirs at law, and declaring that the residuary devise and bequest in favor of the United States was valid, and that the United States should have a reasonable time thereafter to accept the same. From this decree the heirs at law have appealed to this court.

The heirs contend that § 18, article I of the Oregon constitution, which provides that private property shall not be taken for public use without just compensation, 'automatically excludes the granting of property' to the government by will or gift. It should require no argument to show that the cited section has reference only to a 'taking' under the power of eminent domain, and has nothing whatever to do with taking of title to real property by devise.

The validity of a devise of lands to the United States is to be determined by the law of the state in which the lands are situated. Clark v. Graham, 6 Wheat. 577, 579, 19 U.S. 577, 579, 5 L.Ed. 334; McCormick v. Sullivant, 10 Wheat. 192, 202, 23 U.S. 192, 202, 6 L.Ed. 300; Darby v. Mayer, 10 Wheat. 465, 23 U.S. 465, 6 L.Ed. 367; United States v. Fox, 94 U.S. 315, 320, 24 L.Ed. 192.

By the law of Oregon as it was when this will was executed, every person of lawful age was competent to devise and bequeath his property by last will to whomsoever he pleased. § 18-101, O.C.L.A. This he might do without regard to natural claims upon his bounty. Turner's Will, 51 Or. 1, 8, 93 P. 461; In re Holman's Will, 42 Or. 345, 356, 70 P. 908. See, however, Chap. 475, Oregon Laws 1949, giving surviving spouse of testator a right to take under or against the will.

It is fundamental that the right to take property by devise exists only 'by grace of the statute.' Leet v. Barr et al., 104 Or. 32, 39, 202 P. 414, 416, 206 P. 548. In the case of devises to corporations the capacity of the devisee to take may be restricted, either by force of a general statute, or by limitations against a taking for purposes wholly foreign to the objects for which the corporation was organized. 19 C.J.S., Corporations, § 1088e(1)(a), page 631; Rivanna Navigation Co. v. Dawsons, 3 Grat. 19, 44 Va. 19, 46 Am.Dec. 183, 184.

No serious contention is made that the United States does not have the capacity to take money or personalty by gift or bequest. The argument is centered upon the proposition that, under the laws of Oregon, the testatrix did not have power to devise real property to the United States. In this connection, it is insisted that the limitation on the power to devise real property to bodies corporate or politic contained in the English Statute of Wills, 34-35 Henry VIII, c. 5, is a part of the law of Oregon.

There can be no question, of course, but that the United States is a body politic, but that it is such a body 'politick' as was prohibited by the English Statute of Wills from taking by devise may be seriously questioned. The king, it is true, was for some purposes regarded as a corporation sole. 1 Bl.Comm. 469. He was so regarded in order 'to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the crown entire'. Id., 470. But the king, at least in the sixteenth century, was not identified with the state. 'He and his subjects together were the 'great corporation or body politick of the kingdom''. Holdsworth, History of English Law, IV, 203. The king had both a natural and a politic capacity, Id. 202, and we have been unable to find any suggestion in the books that, in his natural capacity, he was forbidden by law to take property by gift, bequest or devise. It was held in United States v. Fox, supra, 94 U.S. 315, 321, 24 L.Ed. 192, that the English Statute of Wills became a part of the law of New York upon the adoption of her constitution in 1777. The New York statute of wills provided that a devise of lands might be made 'to any person capable by law of holding real estate; but no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter or by statute to take by devise.' It was held, however, that the term 'person' as there used applied to natural persons, and to artificial persons--bodies politic, deriving their existence and powers from legislation--but could not be so extended as to include within its meaning the federal government, and that it would require an express definition to that effect to give it a sense thus extended. In this country generally the statutes of mortmain have not been reenacted or, except in Pennsylvania, received as a part of the common law. 2 Kent's Commentaries, 14th Ed., p. 437; Rood on Wills, 2d Ed., p. 158, §§ 198, 199; 19 C.J.S., Corporations, § 1089b(2), page 638. Even in England the incapacity of corporations to take by devise has been removed by the Statute of Wills, 1 Vic. c. 26. Rood on Wills, 2d Ed., p. 157, § 197.

There are few statutory restrictions in the United States against the taking of real property by public corporations by devise. Rood on Wills, 2d Ed., p. 159, § 200. In the absence of statutory or constitutional prohibition a sovereign state may be a beneficiary under a will. 68 C.J., Wills, p. 527, § 146; 57 Am.Jur., Wills, p. 142, § 157. In Vestal et al. v. Pickering et al., 125 Or. 553, 555, 267 P. 821, the opinion took note of the fact that there was no Oregon statute prohibiting the state from receiving property by will. The case had to do with a testamentary disposition of property to a school district and it was held that so long as the operations of the district were limited to the maintenance and support of the schools the district was not exceeding its powers by receiving such a devise, though its capacity to receive it was not expressly mentioned in the statute. Counsel for the heirs at law maintain that, as the United States is a government of limited powers, its authority to take title to real property by devise must be found in the constitution or necessarily implied from the powers directly granted therein. It would appear that they believe that, if the United States should accept the devise in the present case, it would be holding property 'for private or personal purposes', whereas all of its property and revenues must be held and applied 'to pay the debts and provide for the common defense and general welfare of the United States.' Van Brocklin v. State of Tennessee et al., 117 U.S. 151, 158, 6 S.Ct. 670, 674, 29 L.Ed. 845.

We have held that by force of our constitution and statutes, § 7, Art XVIII, Oregon Const.; Laws of Oregon, 1843-1849, p. 100, the common law of England, modified and amended by English statutes, as it existed at the time of the American Revolution, was adopted and is in force in this state, as far as it was general and not local in its nature, was applicable to the conditions of the people, and was not incompatible with the nature of our political institutions, or in conflict with the constitution and laws of the United States or of this state. United States F. & G. Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A.L.R. 829, 833; Peery v. Fletcher, 93 Or. 43, 53, 182 P. 143; Fidelity & Deposit Co. v. State Bank of Portland, 117 Or. 1, 5, 242 P. 823; In re Water Rights of Hood River, 114 Or. 112, 166, 227 P. 1065. The English statutes of mortmain, including the Statute of Wills of Henry VIII, as far as they inhibited public corporations from taking real property by devise, were local in...