Ramsey v. Stephenson

• Citation: 56 P. 520,34 Or. 408
• Parties: RAMSEY et al. v. STEPHENSON et al.
• Decision Date: 27 March 1899
• Court: Supreme Court of Oregon

56 P. 520

34 Or. 408

RAMSEY et al. v. STEPHENSON et al.

Supreme Court of Oregon

March 27, 1899

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Bill by James S. Ramsey and others against Effie I. Stephenson and others to have set apart to them, as devisees, their distributive share in the estate of Frederick H. Ramsey deceased. From a decree dismissing their bill, complainants appeal. Reversed.

W.T Muir, for appellants.

Lionel R. Webster and J.V. Beach, for respondents.

BEAN J.

The only question in this case is the proper construction of that portion of the ninth clause in the will of Frederick H. Ramsey, deceased, which reads as follows "I give, devise, and bequeath all the rest and residue of my property, real, personal, and mixed, of which I may die seised, unto the said A.W. Lambert, in trust, nevertheless, to sell and dispose of the same, and to convert it into cash, and divide the proceeds equally among the heirs at law." At the time of the testator's death he left, surviving him, a brother and sister, six children of a deceased brother, five children of one deceased sister, and six children of another; and the question is whether these heirs take per capita, or by right of representation. There is nothing in the other provisions of the will, or the surrounding circumstances, throwing any light on the testator's intention; but it must be gathered from the clause quoted.

For the plaintiffs it is contended that the money realized from the sale of the residue of the estate of the decedent should be distributed among the 19 heirs in equal parts, while the defendants contend that it should be divided into five parts, and distributed per stirpes, and not per capita. The argument on both sides is based to some extent on decisions, some of which are in point on each theory. The courts all agree, however, that the intention of the testator must govern, if it can be ascertained from the language used, and that analogous decisions are of importance only as aids in ascertaining such intention, when it is doubtful. It may, perhaps, be stated as a general rule that, under a devise to heirs, without naming them, which therefore necessarily compels a reference to the statute of distribution to ascertain who shall take under the will, the devisees will take in the proportion prescribed by the statute, and, if not of equal degree, they will take by right of representation, or per stirpes, and not per capita, in the absence of a declaration in the will to the contrary, or in case the intention of the testator is in doubt. Richards v. Miller, 62 Ill. 417; Daggett v. Slack, 8 Metc. (Mass.) 450; Bassett v. Granger, 100 Mass. 348; Bailey v. Bailey, 25 Mich. 185; Conklin v. Davis, 63 Conn. 377, 28 A. 537; Wood v. Robertson, 113 Ind. 323, 15 N.E. 457; West v. Rassman, 135 Ind. 278, 34 N.E. 991; Woodward v. James, 115 N.Y. 346, 359, 22 N.E. 150; Eyer v. Beck, 70 Mich. 179, 38 N.W. 20. This rule is founded on the presumption that the testator, having made a resort to the statute necessary to ascertain who are his beneficiaries, intended that it should also govern the proportion in which they should take, unless he expressed a different intention. But when he prescribes the mode of distribution there is no room for presumption, and it must be made as he directs.

Now, in the case at bar, the language of the will indicates clearly the intention of the testator as to the manner of distribution, because he expressly declares that it shall be made equally among the heirs at law, and this direction must prevail....