Neal v. Davis

• Citation: 53 Or. 423,99 P. 69
• Parties: NEAL et al. v. DAVIS et al.
• Decision Date: 12 January 1909
• Court: Oregon Supreme Court

99 P. 69

53 Or. 423

NEAL et al. v. DAVIS et al.

Supreme Court of Oregon

January 12, 1909

Appeal from Circuit Court, Wasco County; W.L. Bradshaw, Judge.

Action by Frank J. Neal and others against Charles Davis and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

On June 21, 1881, in Wasco county, of this state, Jesse Neal died seised and possessed of the N. 1/2 of the S. 1/2 of section 26, township 2 N., range 10 E., W.M., situate in that county. There survived him his widow, Lucy M. Neal, and four children, viz., Flora, who was then 21 years of age, Grace 7, Frank, 13, and Oscar, 10 years old. On October 17, 1880 Flora intermarried with H.W. Smith, and on May 27, 1893, she died intestate, leaving as her sole heir her husband, who is one of the plaintiffs herein. Jesse Neal left as his will the following instrument, executed by himself, with the attestation of two witnesses: "Know all men by these presents, that I, Jesse Neal, being in my own right mind and by my own free will and accord, without fear or compulsion do hereby will and bequeath all my property, both personal and real estate, to my beloved wife, Lucy M. Neal, to have and to hold the same during her natural life, or to sell and convey the said property for the benefit of herself and her heirs, and any and all indebtedness that may be against said estate." On July 10, 1882, Lucy M. Neal, acting under the belief that she was the sole devisee of her husband bargained and sold the said land for a consideration of $2,000, and attempted to convey to John W. Henrichs, one of the defendants, by a general warranty deed, a fee-simple title thereto. Henrichs entered into immediate possession of the whole of said land, and at the commencement of this action was in possession of the N.W. 1/4 of the S.E. 1/4 of section 26; but, after receiving his deed from the widow, he conveyed to another the N. 1/2 of the S.W. 1/4 of the section, and by mesne conveyances such title and right of possession as Henrichs had become lodged in defendant Charles Davis, who was in possession thereof at the commencement of the action; and to another he conveyed the N.E. 1/4 of the S.E. 1/4, and the title to that became lodged in defendant Edward A. Cushman. Lucy M. Neal died July 17, 1900, and in February, 1906, Frank and Oscar Neal and their sister Grace (now Grace Rodgers), together with H.W. Smith, the surviving husband of Flora, jointly brought this action against Charles Davis Edward A. Cushman, and John W. Henrichs to recover the possession of the said lands, alleging ownership in fee in themselves coupled with a right of immediate possession. Only Davis and Henrichs appeared. They answered jointly, denying the material averments of the complaint, excepting they admit the ownership and possession of the lands in dispute by Jesse Neal at the time of his death and the demise of the widow in July, 1900. They deny any joint possession or detention by themselves of the whole of the land; but Davis admits his possession of the W. 1/2 of the tract, and avers that he is the owner in fee and entitled to the possession thereof, and disclaims any interest or right to the possession of the remainder of the land. Henrichs similarly pleads in respect to the N.W. 1/4 of the S.E. 1/4, with a like disclaimer by him to the remainder. For a second defense they plead the statute of limitations. As a third defense they plead the prior ownership of Jesse Neal and his death; that he left a will, stating its terms, and that it was regularly admitted to probate in July, 1881, Lucy M. Neal being appointed and having qualified as executrix thereof; that she elected to take under the will; and that acting under the authority thereby conferred, and for the sum of $2,000 to her paid, she sold and conveyed the land to John W. Henrichs, who went into the immediate possession thereof, and has ever since held and still holds possession of the N.W. 1/4 of the S.E. 1/4; that by sundry mesne conveyances from Henrichs defendant Davis has succeeded to and come into possession of the W. 1/2 of the tract; that the sum received by Mrs. Neal for the sale of the land has been used in the payment of the debts of the estate and for the benefit of the children of the testator, for which reason, it is claimed, plaintiffs ought now to be estopped from showing or attempting to show that the writing purporting to be the will of Jesse Neal was not a valid will. By their reply plaintiffs deny the new matter of the answer, excepting that they admit the execution of the will, which they claim is void as to them, because of the alleged fact that none of the testator's children were named or provided for therein. They further plead the execution and delivery by Lucy M. Neal of the deed purporting to convey the land to Henrichs, that such deed was recorded, and that Henrichs went into possession of the land under the deed, but they deny that he has ever since held possession of the premises in dispute. For a further and separate reply to the entire answer, plaintiffs plead their relationship to Jesse Neal, his ownership of the property at the time of his death, the will, by copy, the ages of the children at the death of their father, the invalidity of the will, that the only right, title, or interest Lucy M. Neal had in the property was a dower interest, or the use during her natural life of one-third part thereof, the making of her deed to Henrichs, who, it is averred, took thereby only the life estate of the grantor, in and to an undivided one-third thereof, and the death of Lucy M. Neal on July 17, 1900. A general demurrer interposed by defendants to this reply was sustained by the court. Thereupon defendants moved for a judgment on the pleadings in their favor, and the plaintiffs offered a similar motion in behalf of themselves. The former was sustained and the latter denied. Whereupon judgment was entered to the effect that Davis was the owner in fee simple of the N. 1/2 of the S.W. 1/4, that Henrichs was the owner to the same extent of the N.W. 1/4 of the S.E. 1/4 of the section, and that plaintiffs had no interest therein. From this judgment, plaintiffs have appealed.

O.A. Neal and H.H. Northup, for appellants.

W.H. Wilson, for respondents.

SLATER C. (after stating the facts as above).

Two principal questions are involved in the consideration of the demurrer to the further and separate reply, viz.: (1) The validity and effect of the will; and (2) the effect of the deed from Lucy M. Neal to Henrichs. Upon the first question we have no doubt that the will is void as to the children of Jesse Neal, and that as to them there was no will. None of the four children of Jesse Neal are mentioned or referred to in his will, either particularly or generally, as a class, nor is there any provision made for them either specifically or generally. If this is true, then, by the force of the statute (B. & C.Comp. § 5554) as interpreted and construed by this court ( Gerrish v. Gerrish, 8 Or. 351, 34 Am.Rep. 585; Northrop v. Marquam, 16 Or. 173, 186, 18 P. 449; Worley v. Taylor, 21 Or. 589, 28 P. 903, 28 Am.St.Rep. 771), the above conclusion must inevitably follow. The only reference, direct or remote, made therein to any beneficiary, other than Lucy M. Neal, is in these words "for the benefit of herself and her heirs." But counsel for defendants strenuously urge that the words "her heirs" as there used should be read to mean "her heirs apparent," or "her children," and from this premise, assuming as a fact that "her children" were also "his children" they arrive at the desideratum, that the children of the testator are referred to, and a provision made for them as a class. A number of authorities are cited to support this contention, some of which are the following: 2 Underhill on Wills,§ 616; Bond's Appeal, 31 Conn. 183; Coleman v. Coleman, 69 Kan. 39, 76 P. 439; Hochstein v. Berghauser, 123 Cal. 681, 56 P. 547; Bunting v. Speak, 41 Kan. 424, 21 P. 288, 3 L.R.A. 690. But none of them are in point here. An examination of them will show that the interpretation of the word "heirs" to mean "children" was enforced in each case cited because some qualifying word or some other provision of the instrument under consideration disclosed that the word "heirs," as used, was intended to mean "children," and the intent of the maker when disclosed on the face of the instrument must control. But, when unexplained and uncontrolled by the context, the word "heirs," like all other legal terms, is to be given its technical import, in which sense it designates the persons who could by statute succeed to the real estate in case of intestacy. Hochstein v. Berghauser, supra. The case of Boman v. Boman, 49 F. 330, 1 C.C.A. 274, is much in point here. A provision in Bowman's will read: "I give, bequeath and devise to each of my heirs at law the sum of one dollar." The contention was that the term "heirs at law" includes the children of the testator, and that it therefore necessarily follows that the children were not overlooked or forgotten. In the course of the opinion Mr. Justice Hawley says: "The words 'heirs at law' may, it is true, be read to mean 'children,' and should always be so construed if the context distinctly shows that the words were employed in that sense by the testator. The term 'heirs at law,' however, in its general definition, includes many others. It is not limited to children. It may be used, and is often used, in cases where there are no children. It includes parents, brothers, sisters, etc. Who can tell by reading this will what particular heirs were in the mind of the testator at the time he signed the will? Does it clearly appear that it was his intention to provide for his children? Is it manifest upon the face of the will...