In re Norton's Estate

• Decision Date: 09 October 1945
• Citation: 162 P.2d 379,177 Or. 342
• Parties: IN RE NORTON'S ESTATE STATE LAND BOARD ET AL. <I>v.</I> NORTIN ET AL.
• Court: Oregon Supreme Court

177 Or. 342

162 P.2d 379

IN RE NORTON'S ESTATE STATE LAND BOARD ET AL.v.

NORTIN ET AL.

Supreme Court of Oregon.

Argued September 12, 1945.

Modified October 9, 1945.

Appeal and error

1. Where only question on appeal was whether petition of deceased's grandson stated facts sufficient to show that he was an heir, statement in opinion that deceased's surviving sister was not appointed by law to succeed to the deceased's estate was dictum and was not the law of the case and did not preclude court from determining question raised by petition of the sister's executrix as to whether the sister was an heir.

Statutes

2. In absence of anything in statute clearly indicating a contrary intent, where the same word or phrase is used in different parts of statute, it will be presumed to be used in the same sense throughout, and where its meaning in one instance is clear that meaning will be attached to it elsewhere.

Descent and distribution

3. The word "heirs" in escheat statute means those succeeding to the estate of one dying intestate.

Statutes

4. The escheat statute and provision of descent and distribution statute relating to escheat are in pari materia and are to be construed together.

Escheat

5. The phrase "if the intestate shall leave no lineal descendants", as used in provision of descent and distribution statute relating to escheat, refers to lineal descendants qualified to succeed to the estate of the intestate and therefore bears the same meaning in prior subdivision regarding distribution in absence of lineal descendants.

Descent and distribution

6. A surviving sister of woman feloniously slain by her son was an "heir" and could inherit the deceased's estate.

KELLY, J., dissenting.

                  See 50 Am. Jur. 259
                  5 C.J.S., Appeal and Error, § 1964
                

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

Appeal from Circuit Court, Multnomah County.

ASHBY C. DICKSON, Judge.

Proceeding in the matter of the estate of Mary Norton, deceased, wherein Minnie Nortin, administratrix of the estate of Mary Norton, deceased, instituted proceedings to determine who were the heirs and distributees of the deceased and wherein Gladys Crawford, executrix of the estate of Emma Gardner, deceased, the State Land Board and Clarence H. Nortin were claimants. From decrees dismissing their petitions, the State Land Board and Gladys Crawford, executrix of the estate of Emma Gardner, deceased, appeal.

MODIFIED.

Grace L. Bottler, Assistant Attorney General (George Neuner, Attorney General, on the brief), for State Land Board, appellant.

John W. Kendall, of Portland (Black, Johnson & Kendall, of Portland, on the brief), for Gladys Crawford, executrix.

Jesse G. Warrington, of Portland, for Clarence H. Nortin, respondent.

S.J. Bischoff, of Portland, for Minnie Nortin, administratrix.

LUSK, J.

Mary Norton died intestate on March 3, 1942, leaving as her only surviving relatives a son, Clarence H. Nortin (born Clarence H. Norton); a grandson, Claude Harold Norton, the son of Clarence H. Nortin; and a sister, Emma Gardner, since deceased.

This case is a proceeding in the Circuit Court for Multnomah County, Probate Department, to determine who are the heirs and distributees of Mary Norton, deceased. The claimants in the court below are the son of the intestate; the executrix of the deceased sister; and the State Land Board, which asserts that the estate has escheated. We have heretofore rendered a decision adverse to the claim of the grandson. Norton v. Norton, 175 Or. 115, 151 P. (2d) 719, 156 A.L.R. 617. On this appeal the rights of the sister and the State Land Board are involved. They have appealed from decrees dismissing their petitions. The respondents are Clarence H. Nortin and Minnie Nortin, administratrix of the estate of Mary Norton, deceased. Should it be determined that the sister's petition states facts sufficient to show that she is entitled to inherit the estate, the case of the State Land Board must fail.

In view of contentions now advanced it will be well to state briefly the issue and the ground of decision on the former appeal.

Claude Harold Norton filed a petition in the Circuit Court alleging in substance that his father, Clarence H. Nortin, had feloniously killed Mary Norton and thereby had lost his right to inherit her estate under the provisions of § 16-203, O.C.L.A., and that he, the said Claude Harold Norton, was entitled to the estate as "the only living lineal descendant of said Mary Norton except her said son." were filed by Clarence H. Nortin; Gladys Crawford, executrix of the estate of Emma Gardner, deceased; and the State Land Board. The Circuit Court "dismissed" the demurrer of the State Land Board, but sustained the other demurrers, and, as stated, entered a decree that Claude Harold Norton was not an heir and not entitled to receive the estate of Mary Norton, deceased. He appealed, and the only question in this court, as in the Circuit Court, was whether his petition stated facts sufficient to show that he was the heir. We held that the demurrers were properly sustained and affirmed the decree.

"The son", it was said, "because of his allegedly felonious slaying, is not appointed by law to succeed to the real estate of the decedent. Other lineal descendants are so appointed only in case there is no child of the intestate living at the time of her death. Despite the serious charge against him, decedent's son was living at the time of decedent's death, hence other lineal descendants are not appointed by law to succeed to her real estate."

1. And it was added, though unnecessary to the decision, that the sister, the question of whose status was not then before the court and not presented in argument, was not appointed by law to succeed to the decedent's estate. Being dictum, this statement is not the law of the case (3 Am. Jur., Appeal and Error, 551, § 996) and does not preclude us from now considering and deciding the question raised by the petition of the sister's executrix.

That petition alleges the relationship of Emma Gardner to Mary Norton; the felonious slaying of Mary Norton by her son, Clarence H. Nortin; and that the executrix of the estate of Emma Gardner, deceased, is entitled to the whole of the estate of Mary Norton, deceased.

It is the contention of the respondents that our decision that the grandson is not an heir compels a like disposition of the sister's claim. That decision was based upon the first subdivision of § 16-101, O.C L.A., providing that the real property of an intestate shall descend:

"In equal shares to his or her children, and to the issue of any deceased child by right of representation; and if there be no child of the intestate living at the time of his or her death, such real property shall descend to all his or her other lineal descendants; and if all such descendants are in the same degree of kindred to the intestate, they shall take such real property equally, or otherwise they shall take according to the right of representation".

As appears from the excerpt quoted above from the opinion of the former appeal, we held that because there was a child of Mary Norton living at the time of her death, namely, Clarence H. Nortin, the alleged slayer, the condition upon which depends the right of a lineal descendant of that child to inherit was not present. The respondents argue that the same reasoning applies to the following clause of the third subdivision of § 16-101:

"If the intestate shall leave no lineal descendants, neither husband nor wife, nor father nor mother, such real property shall descend in equal shares to the brothers and sisters of the intestate".

It is said that in fact Mary Norton died leaving lineal descendants, namely, her son and her grandson, and therefore the condition upon which depends the right of the sister to inherit is not present.

But this contention ignores another provision of § 16-101 which, in our opinion, makes the respondent's position untenable. Subdivision (6) reads:

"If the intestate shall leave no lineal descendants or kindred, such real property shall escheat to the state of Oregon."

2. It will be observed that the identical phrase, "if the intestate shall leave no lineal descendants", appears both in Subd. (6) and Subd. (3). That phrase is employed in each instance for the purpose of declaring the contingency which shall determine the succession to the real property of an intestate. It is an established rule of statutory construction that:

"In the absence of anything in the statute clearly indicating a contrary intent, where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and where its meaning in one instance is clear, this meaning will be attached to it elsewhere, * * *." 59 C.J. 1003, § 597, quoted in Cordon v. Gregg, 164 Or. 306, 317, 97 P. (2d) 732, 101 P. (2d) 414. To the same effect, see State ex rel. Eugene v. Keeney, 123 Or. 508, 512, 262 P. 943, 946; James v. City of Newberg, 101 Or. 616, 619, 201 P. 212.

There is nothing in § 16-101 to indicate or suggest that the legislature intended to use the phrase in question in one sense in Subd. (3) and in a different sense in Subd. (6), and it is, therefore, our duty to attach the same meaning to that phrase throughout.

The meaning of the phrase in Subd. (6) is not open to doubt. The legislature was speaking of lineal descendants, and, as well, of kindred, qualified to inherit. In 1864 when Subd. (6) of § 16-101 was enacted, Ch. 15, p. 719, Deady's General Laws of Oregon 1845-1864, establishing a procedure for escheats, was in existence. Section 1 of that chapter provided:

"When any person shall die without heirs, leaving any real or personal property in this state, the same shall escheat to, and become the property of the state."

3, 4. The word "heirs" in the foregoing provision was, we think, used broadly as meaning "those succeeding to the...