Putnam v. Jenkins

• Jurisdiction: Oregon
• Parties: George W. PUTNAM and Gladys Putnam, Appellants, v. Harry JENKINS and Jane Doe Jenkins, husband and wife, Francis Jenkins and Jane Doe Jenkins, husband and wife, Ethel McCaffree and John Doe McCaffree, wife and husband, May Boyd and John Doe Boyd, wife and husband, Lilla Garland and John Doe Garland, wife and husband, and Delbert Patterson, a single man, and all persons or parties unknown claiming any right, title, estate, lien or interest in the real property described in the complaint herein, Respondents. Katherine A. Pettingill, by her attorney-infact, Howard H. Pettingill, Plaintiff in Intervention. MONARCH DOOR & MANUFACTURING CO., a corporation, Plaintiff in Intervention, v. George W. PUTNAM, Gladys Putnam, Katherine A. Pettingill, by her attorney-infact, Howard H. Pettingill, Harry Jenkins and Jane Doe Jenkins, husband and wife, Francis Jenkins and Jane Doe Jenkins, husband and wife, Ethel McCaffree and John Doe McCaffree, wife and husband, and Delbert Patterson, a single man, and Lilla Garland and John Doe Garland, wife and husband, Defendants in Intervention.
• Citation: 285 P.2d 532,204 Or. 691
• Court: Oregon Supreme Court
• Decision Date: 29 June 1955

Page 532

285 P.2d 532

204 Or. 691

George W. PUTNAM and Gladys Putnam, Appellants, v.Harry JENKINS and Jane Doe Jenkins, husband and wife,Francis Jenkins and Jane Doe Jenkins, husband and wife,Ethel McCaffree and John Doe McCaffree, wife and husband,

May Boyd and John Doe Boyd, wife and husband, Lilla Garland

and John Doe Garland, wife and husband, and Delbert

Patterson, a single man, and all persons or parties unknown

claiming any right, title, estate, lien or interest in the

real property described in the complaint herein, Respondents.

Katherine A. Pettingill, by her attorney-infact, Howard H.

Pettingill, Plaintiff in Intervention.

MONARCH DOOR & MANUFACTURING CO., a corporation, Plaintiffin Intervention, v.George W. PUTNAM, Gladys Putnam, Katherine A. Pettingill, by

her attorney-infact, Howard H. Pettingill, Harry Jenkins and

Jane Doe Jenkins, husband and wife, Francis Jenkins and Jane

Doe Jenkins, husband and wife, Ethel McCaffree and John Doe

McCaffree, wife and husband, and Delbert Patterson, a single

man, and Lilla Garland and John Doe Garland, wife and

husband, Defendants in Intervention.

Supreme Court of Oregon, En Banc.

Argued November 17, 1954.

Decided June 29, 1955.

James C. Dezendorf, Portland, argued the cause for appellantsGeorge W. Putnam and Gladys Putnam.On the briefs were Koerner, Young, McColloch & Dezendorf and James H. Clarke, Portland.

John H. Carson, Salem, argued the cause for respondents.With him on the brief was L. H. McMahan, Salem.

Before LATOURETTE^*, C. J., and WARNER^**, ROSSMAN, LUSK, BRAND, TOOZE and PERRY, JJ.

WARNER, Chief Justice.

This suit was begun for the purpose of quieting the title of the plaintiffsGeorge W. Putnam and Gladys Putnam, brother and sister, who claim to be the owners of the following described real property:

'The north half of the southwest quarter, and the southwest quarter of the southwest quarter, and the northwest quarter of the southeast quarter, all in section 20, township 24 south, range 1 west of the Willamette Meridian, Douglas County, State of Oregon.'

The foregoing is a description of the same parcel described in the inventory filed in the matter of the probate of Mrs. Lilla G. Putnam's estate, instituted in Douglas county in August 1947.For convenience we will hereinafter refer to it as the 'inventory description'.The inventory also included the northwest quarter of said section 20 in which we have no interest and which we assume to have been the homestead entry of Mrs. Putnam occasionally referred to as having been adjacent to the timber entry of John F. Pettingill, now deceased, and husband of the intervenor, Katherine A. Pettingill.

The suit was initially brought against the heirs of Irvena Jenkins, deceased (a sister of Lilla G. Putnam), as claimants of interests adverse to the title of the plaintiffs Putnam.Thereafter, Katherine Pettingill, the respondent, filed her complaint in intervention in which she prayed that said real property be sold and the proceeds from said sale distributed as directed in the will of her sister Lilla.We will later give particular attention to this provision.

Prior to 1913 the property above described was owned by the said John F. Pettingill.It was mortgaged that year by Mr. and Mrs. Pettingill to secure a loan made to them by L. A. Moore.In 1914 this mortgage was satisfied of record by Moore after receiving a warranty deed to the land from the Pettingills.In February 1915Lilla Putnam, a sister of Katherine Pettingill and the stepmother of the appellants George and Gladys Putnam, paid Moore $400 for the above described property.Moore thereupon conveyed it by warranty deed to Mrs. Putnam, who thereafter held title until she died in 1933.

From a decree dismissing the complaint of the plaintiffs and directing a sale of the real property and a distribution of the proceeds in accordance with the directions of Lilla Putnam's will, the plaintiffs George and Gladys Putnam appeal.

The Monarch Door & Manufacturing Co., was another plaintiff in intervention but shortly after the initiation of this appeal withdrew as an appellant.Its interest is, therefore, no longer a matter for our inquiry.

This appeal presents no issue of fact.We have only to treat here with issues of law which are presented by undisputed facts.However, before we proceed further it is necessary to have a fuller understanding of these facts whence the legal issues are derived.

Mrs. Pettingill's sister Lilla died in Minneapolis, Minnesota, on June 14, 1933.Prior to that date, on June 18, 1927, she had executed her last will and testament wherein she devised and bequeathed all her real and personal property to her husband George H. Putnam(father of the appellants) in language as follows:

'All my property * * * with the exception of the following property:----

'The North half of the South West Quarter (N 1/2 SW 1/4) and North West of the South East Quarter (NW 1/4 SE 1/4) and South West of the South West Quarter (SW 1/4 SW 1/4) of section twenty (20) Township twenty four (24) Range One (1) West.When this is sold, the proceeds over and above the indebtedness to us shall be paid to my sisterKatherine A. Pettingill.

And of the indebtedness accruing to us from this property I will and bequeath five hundred dollars to my daughter Dorothy and the same amount to my sisterIrvena R. Jenkins and the remainder to be divided among Gladys Putnam, George William Putnam and Dorothy Putnam as my executor deems best.'

George H. Putnam was also nominated as executor.We hereinafter refer to the description found in the will as the 'testamentary description'.

It is well to observe that it is the above quoted portion of the will that furnishes the crux of the controversy which this appeal seeks to resolve.We note, too, that the testamentary description of the real property above excepted from the gift to the testatrix' husband is wanting in reference to a given meridian and makes no mention of the county or state in which it is located.Otherwise, the description of the 160 acres comprising the testamentary description is identical with the inventory description of the property which is the subject of this suit and was the parcel which the Pettingills mortgaged to Moore in 1913 and later conveyed to him and which Moore in 1914 deeded to Lilla Putnam.

Notwithstanding that Mrs. Putnam died in 1933 and that she owned property in this state adjacent to that first herein described, her will was not probated in Oregon until after her husband's death.He died intestate in 1946.Nor was it probated elsewhere prior to the filing in Douglas county in 1947, 14 years after her death.The probate of Mr. Putnam's estate was begun in 1946 and closed in April 1947.The final order in Mrs. Putnam's estate was entered in April 1948.

Mrs. Pettingill had no knowledge of the existence of her sister's will or the provisions it made for her until sometime after July 1948.

The final order in Mrs. Putnam's estate attempted to confirm title to the subject property in the appellants as heirs of George H. Putnam, deceased, because, as therein stated, 'under the terms of said Wili of said deceased, all of the property, real and personal, was given and bequeathed unto George H. Putnam, her husband, except certain properties which does not include the property located in Douglas County, Oregon, and described in the inventory and appraisement on file herein'.

Because of the incomplete description of the 160 acres referred to in the will, the probate court evidently treated the property first above described as a different parcel concerning which Mrs. Putnam had made no testamentary disposition and held that the title to the fee passed to her surviving spouse and upon his death to his son and daughter, the appellants Putnam.

We are not interested in or controlled by any declaration of the probate court concerning the appellants purported title in and to the Douglas county parcel.It avails them naught for the reason that probate courts are without authority to determine and decree title to real property.Arnold v. Arnold, 193 Or. 490, 496, 237 P.2d 963, 239 P.2d 595;In re Estate of Ott, 193 Or. 262, 273, 238 P.2d 269;Harrington v. Jones, 53 Or. 237, 239, 99 P. 935.

We refer to it, however, as an interesting bit of the factual history herein involved and because the appellants very apparently rely on the probate court's order of April 1948 in Mrs. Putnam's estate as one of their props for their allegations of ownership and right to possession.

Subsequent to and before the entry of the orders in probate, the appellants began negotiations for the sale of the Douglas county parcel to various timber companies.As an incident to their transactions with propective buyers, they were informed that the references in Mrs. Putnam's will to Mrs. Pettingill and the heir Irvena Jenkins created a cloud on 'their title'.They thereupon sought and received a quitclaim deed from Mrs. Pettingill under circumstances upon which we will later elaborate.The heirs of Irvena Jenkins were likewise solicited to give quitclaim deeds but refused to do so.It was their refusal which precipitated this suit and which in turn brought in Mrs. Pettingill as a plaintiff in intervention, praying that the real property described in the will be sold and the proceeds of the sale distributed to those entitled thereto as provided in the will.

After the trial of this matter in the circuit court and before the entry of the decree, Mrs. Pettingill died, on November 26, 1952, and her heirs and administrator were thereafter substituted in her place.

The Putnams rest their appeal upon four assignments of error.Speaking generally, these relate to (1) the alleged vague and ambiguous quality of the description of the real property as found in the will; (2) the effect, if any, of Mrs. Pettingill's quitclaim deed; (3) Mrs. Pettingill's amended reply; and (4) the computation of the amounts due ap...