In re Pape's Estate

• Citation: 135 Or. 650,297 P. 845
• Parties: IN RE PAPE'S ESTATE. v. UNITED STATES NAT. BANK ET AL. PAPE ET AL.
• Decision Date: 07 April 1931
• Court: Oregon Supreme Court

297 P. 845

135 Or. 650

IN RE PAPE'S ESTATE.

PAPE ET AL. v. UNITED STATES NAT. BANK ET AL.

Supreme Court of Oregon

April 7, 1931

Department 2.

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

In the matter of the estate of Ferdinand B. Pape, deceased. From an order settling the final account of the trustee and executor of the estate, Chester H. Pape and another appeal, opposed by the United States National Bank, trustee and executor, and others.

Affirmed.

McDannell Brown, of Portland, for appellant.

Harry Hall, of Portland, for United States Nat. Bank.

BEAN C.J.

Prior to May 21, 1929, Chester H. Pape and Edward C. Pape appellants herein, and their brother, the late Ferdinand B Pape, were the owners in equal and undivided interests of certain real property hereinafter described. Ferdinand B. Pape, now deceased, on August 25, 1928, duly executed and published his last will and testament, which provided, among other things, as follows:

"Second I give, devise and bequeath to my two brothers, Chester H Pape and Edward C. Pape all my right, title and interest, (the same being an undivided one-third interest) in the property owned by me and my said two brothers, in the Northeast corner of East 11th and Ankeny Streets, Portland, Oregon."

The will further provided for the appointment of the United States National Bank of Portland, Or. as executor. On May 21, 1929, appellants and Ferdinand B. Pape, now deceased, entered into a contract for the sale of said real property to the United Development Syndicate, Inc., for the total price of $11,500. The purchaser paid $3,000 in cash, took title to the property, and executed to the three brothers jointly a purchase-money mortgage to secure the payment of the balance of $8,500. On July 10, 1929, Ferdinand B. Pape died without altering or modifying the provision of his will above set forth. This will was duly and regularly admitted to probate, and the United States National Bank was appointed executor. Appellants then contended that, under the terms of the will, they were entitled to receive, upon final distribution, the undivided one-third interest of the deceased in the promissory note and mortgage, and demanded the same of the executor. This the executor refused to accede to without direction from the probate department of the circuit court of Multnomah county. The executor, upon making its final report, set out the facts above stated, and requested the court to make an order of distribution, with specific reference to the distribution of the undivided one-third interest of the deceased in the above-mentioned promissory note and mortgage. The appellants then filed a petition in the nature of an objection to the final account of the executor, praying that, upon the hearing of the final account and distribution of the estate, they be decreed to be entitled to receive from the executor the undivided one-third interest in the promissory note and mortgage owned by Ferdinand B. Pape at the time of his death.

The circuit court in its order, settling the final account and directing the distribution, decreed that the devise to Chester H. Pape and Edward C. Pape, in the last will and testament of the deceased, had failed, for the reason that, prior to his death, the deceased had sold and conveyed the real property to the United Development Syndicate, Inc., and that the undivided one-third interest of the deceased in the promissory note and mortgage should be distributed, upon final distribution, to the United States National Bank of Portland, as trustee, under the terms set forth in the last will and testament of the deceased.

The question is, What property or what kind of property did Ferdinand B. Pape possess at the time of his death? A will speaks only from the time of the death of the testator, unless a contrary intent is manifest from the language of the will or its provisions. In re Estate of Denning, 112 Or. 621, 229 P. 912; In re Wilson's Estate, 85 Or. 604, 167 P. 580; Scott v. Ford, 52 Or. 288, 97 P. 99; Morse v. Macrum, 22 Or. 229, 29 P. 615, 30 P. 73; Hardenberg v. Ray (C. C.) 33 F. 812.

The decedent, prior to his death, sold and conveyed the one-third interest in the property in question. Hence he did not own any interest therein that he could devise by will. The note and mortgage were not real estate. A real estate mortgage in this state does not convey title to the real estate. It is only a lien thereon for the purpose of securing the payment of some amount or the performance of some act. At the time of the death of Ferdinand B. Pape, there was no real property subject to the devise of the will.

It is contended on...