Kidder v. Olsen
| Decision Date | 12 September 2001 |
| Parties | Dorothea KIDDER, Appellant, v. Harold OLSEN, the duly appointed and action Personal Representative of the Estate of Newell A. Lawley; and Heather Gartin, Respondents. |
| Court | Oregon Court of Appeals |
Robert P. Van Natta argued the cause and filed the brief for appellant. No appearance for respondent Harold Olsen, Personal Representative of the Estate of Newell A. Lawley, Deceased.
David Brian Williamson argued the cause for respondent Heather Gartin. With him on the brief was Williamson & Williamson.
Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.
Plaintiff Dorothea Kidder, a devisee under the will of the decedent, Newell A. Lawley, appeals from a declaratory judgment that, pursuant to the terms of decedent's will, defendant Heather Gartin has the right to purchase decedent's farm for $46,160, which represents one-half of the property's tax-assessed value at the time of decedent's death.1 We conclude that the trial court correctly construed the will and that Gartin's failure to tender that price within 180 days of decedent's death was excused and, thus, did not preclude Gartin's entitlement to purchase. Consequently, we affirm.
The facts, except as noted, are uncontroverted. Decedent died testate on March 3, 1998. Decedent's will, which he executed on November 7, 1995, contained the following provisions relevant to this dispute:
Following decedent's death, Gartin was appointed personal representative.
At the time of his death, decedent owned two pieces of real property, neither of which was located in Spitzenburg. The first, a roughly 90 acre parcel known as "tax lot 500," is located at 20874 Swedetown Road in Clatskanie, and is described to encompass:
"The North Half of the Southeast Quarter of Section Twenty-six (26), in Township seven (7) North of Range four (4) West of the Willamette Meridian, and also commencing at the Southwest corner of the Southwest Quarter of the Northeast Quarter of said Section twenty-six, and running thence East forty rods; thence North forty rods; thence West forty rods; and thence South forty rods to the point of beginning."
The second, a forested 40-acre parcel adjacent to tax lot 500 and known as "tax lot 300," is described as follows:
On March 19, 1998, Gartin gave plaintiff notice that, pursuant to the farm purchase option in article 4.1, she intended to purchase both tax lot 500 and tax lot 300 in Clatskanie for the "then-current tax assessed value." Plaintiff, through her attorney, objected, noting that article 4.1 did not refer to either lot 300 or lot 500, but to a piece of property in Spitzenburg unrelated to decedent's farm on Swedetown road: "It is not apparent to me how the personal representative can justify going against the plain language in the Will attempting to convert one lot in Spitzenberg into two different pieces of property in Clatskanie."
Plaintiff's letter also demanded that Gartin voluntarily resign as personal representative, suggesting that Gartin's proposed purchase constituted a "conflict of interest in attempting to go against the plain language of the Will which she is required to uphold." Gartin, however, did not voluntarily resign. Consequently, plaintiff filed a request with the probate court seeking Gartin's removal as personal representative. The probate court, in response, issued an order removing Gartin as personal representative and appointing Harold Olsen as her successor.
At the time plaintiff filed her amended and supplemental complaint, she served defendants with a request for admissions under ORCP 45. That request sought defendants' admissions that: (1) "no sale of any estate asset under paragraph 4.1 of the Will of Newell A. Lawley was closed within 180 days of Newell A. Lawley's death"; (2) Gartin "did not pay nor tender any money to [plaintiff] within 180 days" of decedent's death; and (3) Gartin "did not communicate with the successor personal representative * * * in any way within 180 days of the death of Newell A. Lawley, so as to communicate any desire that she may have had to close a sale" as permitted under the will. Gartin, in response, admitted each of those allegations but qualified her admission by arguing that plaintiff was estopped from relying on her failure to close or provide tender. In particular, Gartin argued that the closing deadline was "waived by plaintiff when she petitioned for Heather Gartin's removal as personal representative to prevent her from closing the sale," and that "[t]ender to plaintiff was excused by plaintiff's objections to the sale and petitioning for Heather Gartin's removal as personal representative to prevent her from completing the sale."2
The case was tried to the court. In November 1999, the trial judge issued a letter opinion in which he agreed with Gartin that decedent's will gave her a right to buy decedent's farm on Swedetown Road in Clatskanie, but concluded that, based on the admissible extrinsic evidence, decedent's "farm" included only tax lot 500.3 In addition, the court rejected plaintiff's arguments that Gartin's option had expired on September 3, 1998, and that the sale price should not be based on the tax-assessed value at the time of decedent's death, because that value, by virtue of Measure 50,4 did not correspond to the property's fair market value. Accordingly, the court issued a declaratory judgment that, pursuant to the terms of decedent's will, Gartin was entitled to purchase tax lot 500 for $46,160, but that the option did not extend to tax lot 300.
On appeal, plaintiff raises four assignments of error. In particular, plaintiff argues that the trial court erred in concluding that: (1) the sale price should be based on the property's post-Measure 50 tax-assessed value; (2) Gartin's failure to pay or tender the purchase price and close the sale within 180 days of decedent's death as prescribed by the will was excused "because Plaintiff repudiated and contested the will provision"; (3) Gartin was ready, willing, and able to close the sale; and (4) section 4.1 of decedent's will gave Gartin the right to purchase decedent's farm—namely tax lot 500 at 20874 Swedetown Road in Clatskanie. For cogency of analysis, and because it is potentially dispositive, we begin with plaintiff's fourth assignment of error.
It is a well-established principle in Oregon that "[t]he intention of a testator, as expressed in his will, is * * * the controlling factor in its construction * * *." Portland Trust Co. v. Beatie, 32 Or. 305, 309, 52 P. 89 (1898); see also ORS 112.227 (codifying common-law rule). A court seeking to divine the testator's intent "as expressed in his will" is not, however, limited solely to the words used in the will. Rather, construction of a will often requires resort to maxims of construction and, where appropriate, extrinsic evidence. Portland Trust Co., 32 Or. at 309-10, 52 P. 89 (citations omitted).
Three derivative principles guide our analysis. First, it is essential that any court interpreting the testator's words view those words in the appropriate context. Consequently, extraneous oral...
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