Saunders v. Saunders
| Citation | 490 P.2d 1260,260 Or. 480 |
| Parties | Cecil A. SAUNDERS et al., Appellants, v. Wesley O. SAUNDERS, individually and as executor of the estate of Blanche Alma Saunders, deceased, et al., Respondents. |
| Decision Date | 01 December 1971 |
| Court | Supreme Court of Oregon |
Norman N. Griffith, Portland, argued the cause for appellants. With him on the briefs was Howard P. Arnest, Portland.
Thomas R. Williams, Cottage Grove, argued the cause for respondents. On the brief were Williams & Ackley, Cottage Grove.
Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL and BRYSON, * JJ.
This is a suit brought by the heirs of W. M. Saunders to impress a trust upon property devised to Blanche A. Saunders, his widow, now deceased. Plaintiffs appeal from a decree in favor of defendants.
W. M. Saunders died in 1947 leaving his second wife, Blanche A. Saunders, and six children, three by Blanche and three by his first wife. W. M. Saunders' will contained the following paragraph:
'SECOND, I give and bequeath unto my wife, Blanche A. Saunders all of my property of which I shall die seized and possessed, including real, personal and mixed property of every kind and character wheresoever situated for her use and benefit so long as she remains unmarried, and in the event of the marriage of my said wife, it is my will that she have one-half of all my property of which I shall die seized and possessed including real, personal and mixed property of every kind and character wheresoever situated and that the remainder thereof be divided equally among my children, to-wit: Cecil A. Saunders, Raymond Saunders, Ruby Cramer, Wesley Saunders, Nordelle Wilder and Carl B. Saunders.'
Blanche A. Saunders never remarried. She died testate in 1969. Defendant Wesley O. Saunders is the executor of her estate. Plaintiffs Cecil A. Saunders and Raymond M. Saunders are children of W .M. Saunders by his first marriage. The other plaintiffs are the children of Ruby Saunders Cramer, his daughter by the first marriage. Plaintiffs contend that under the provision of the will set out above Blanche received only a life estate and that since the will did not provide for the contingency of Blanche dying without remarrying, the property passed intestate to plaintiffs and the other heirs of the testator.
On the other hand defendants, children of the second marriage, argue that the will created in Blanche a fee simple estate subject to defeasance only in the event of her remarriage and that when she died not having remarried the estate in fee simple became absolute.
It is to be noted that even if Blanche had remarried she would have been entitled under the will to at least an undivided one-half of testator's estate in fee simple; the other one-half going to the named children of the testator. The testator having devised to Blanche an absolute fee simple interest in one-half the estate whether or not she remarried, it is not unreasonable to assume that testator also intended to devise to her a fee, although a defeasible one, during the time she remained unmarried.
The fact that the wife was given a part of the same property in fee in the event of her remarriage has been relied upon by some courts in holding that the will passes a defeasible fee simple estate. 1 The conclusion that a fee is intended to pass has been based upon additional factors. Thus, the fact that the will fails to provide for a gift over upon remarriage has been deemed significant in deriving the testator's intent. 2
Likewise, the policy against partial intestacy has been a factor in finding an intent to devise a determinable fee rather than a life estate. And support for such a construction is sometimes found in statutes eliminating the necessity for words of inheritance to pass a fee or statutes providing, in effect, for a construction preference in favor of the passing of a fee rather than a lesser estate. 3
The foregoing considerations relied upon in the cases cited in the margin and more fully discussed in the periodical comments prompt us to sustain the holding of the trial court. 4
Plaintiffs urge that the fact that the...
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Estate of Price, In re, 32165-0-I
...upon remarriage as granting a fee simple conditioned upon never remarrying, not a defeasible life estate. See, e.g., Saunders v. Saunders, 260 Or. 480, 490 P.2d 1260 (1971); Lewis v. Searles, 452 S.W.2d 153, 154, (Mo.1970); Dickson v. Alexandria Hosp., Inc., 177 F.2d 876, 880-81 (4th Cir.19......