Irvine v. Irvine

• Decision Date: 11 November 1913
• Citation: 136 P. 18,69 Or. 187
• Parties: IRVINE et al. v. IRVINE et al.
• Court: Oregon Supreme Court

136 P. 18

69 Or. 187

IRVINE et al. v. IRVINE et al.

Supreme Court of Oregon

November 11, 1913

Department 1.

Appeal from Circuit Court, Polk County; William Galloway, Judge.

Bill by Jesse T. Irvine and others against Lizzy Irvine and others. Decree for complainants, and defendants appeal. Affirmed.

John A. Carson, of Salem, and Oscar Hayter, of Dallas for appellants.

Martin L. Pipes, of Portland, and James McCain, of McMinnville (McCain, Vinton & Galloway, of McMinnville, on the brief) for respondents.

MOORE J.

This is an appeal by the defendants from a decree partitioning real property. The question involved is the construction of a clause of the last will of Josiah Johnston, deceased, to wit "Second.--I give and bequeath to my beloved wife, Nancy Johnston, all my real estate, situated in the C.P. Cook donation land claim, in Polk county, Oregon, said land being known as our 'home place,' consisting of one hundred (100) acres, more or less; also give, devise and bequeath to my said wife, all my land situated in the Leonard Williams donation land claim, in Polk county, Oregon, consisting of one hundred and five (105) acres of prairie land, and ten (10) acres of timber land, more or less, to have and to hold the same during her natural life, and she is to have the proceeds and income from said real estate, and at her death the said land is to be sold, and the proceeds of said sale is to be divided equally among my children living at the time of my said wife's death." If by the language quoted a title in fee to the real estate in the Cook donation land claim was intended to be devised to Nancy Johnston, the plaintiffs as her devises secured an undivided three-fourths of the premises, and the defendants obtained by purchase the remainder, which tract, known as the "home place," was divided by referees appointed by the court for that purpose into two parts of the equivalent relative value of the portions stated. If, however, such testamentary disposition gave to the widow only a life estate in the "home place," the plaintiffs have no interest therein, and the defendants are seised of the whole thereof.

In Oregon the term "heirs" or other words of inheritance are not necessary to create or convey an estate in fee simple. L.O.L. § 7103. An enactment, declaring when a freehold estate of inheritance, absolute and unqualified, passes by will, reads: "A devise of real property shall be deemed and taken as a devise of all the estate or interest of the testator therein subject to his disposal, unless it clearly appears from the will that he intended to devise a less estate or interest." Id. § 7344. Seeking in the light of these statutory rules to discover the testator's intention, which is the cardinal method for the interpretation of his wishes as to the disposition of his property after his death, it is argued by defendant's counsel that, though the clause of the will quoted contains distinct descriptions of real property, the devises are not separate and independent, but are connected, thus making the limitation of the life estate applicable to both tracts of land. It is maintained by plaintiff's counsel, however, that the language employed to effectuate the devises consists of two complete and separate sentences, and though the mark adopted to indicate the pause dividing the written composition is a semicolon, and the scrivener began the second sentence with a lower case letter, an examination of the entire clause of the will discloses an unmistakable purpose of the testator to make the limitation of a life estate refer only to the real property in the Williams donation land claim.

It is a well-recognized rule that where an estate in fee is given in one clause of a will in clear and explicit terms, the interest which the devisee thus obtains in the lands cannot be taken away or diminished by any subsequent vague or general expression of doubtful import, or by any inference deducible therefrom, that may be repugnant to the estate given. Underhill, Wills, § 689; McIsaac v. Beaton, 3 Ann.Cas. 615; Mee v. Gordon, 187 N.Y. 400, 80 N.E. 353, 116 Am.St.Rep. 613, 10 Ann.Cas. 172; Lohmuller v. Mosher, 74 Kan. 751, 87 P. 1140, 11 Ann.Cas. 469.

The language employed by the testator to express the devise of the real property in the Cook donation land claim, standing alone, undoubtedly evidences a gift in fee. The interest thus disposed of ought not to be cut down unless it is manifest from an inspection of the entire clause of the will that the testator intended to make the life estate also a limitation upon the land first hereinbefore described.

It will be kept in mind that the will referring to the premises devised to Mrs. Johnston provided that she was "to have and to hold the same during her natural life." "The relative 'same' refers to the next antecedent." 2 Kent's Com. *555. Applying this rule of construction to the term "same" as used in the clause of the will under consideration, the word thus employed evidently relates to "all my land situated in the Leonard Williams donation land claim," though such general description necessarily includes the more specific designation of prairie and timber land. This arrangement would seem to render the word "same" inapplicable to the devise of any part of the land in the Cook donation land claim.

In Finney ex dem. v. Collings, 4 Maule & S. 58, in construing the language of a will, Lord Chief Justice Ellenborough observed: "This is a question for a grammarian rather than a lawyer, or which a schoolmaster might decide as well as a judge."

It is impossible to reconcile the many conflicting decisions that have been rendered upon the question under consideration. It is believed, however, that under a statute like ours requiring a devise of real property to be construed...