Savage v. Savage

• Decision Date: 10 March 1908
• Citation: 51 Or. 167,94 P. 182
• Parties: SAVAGE v. SAVAGE et al.
• Court: Oregon Supreme Court

94 P. 182

51 Or. 167

SAVAGE v. SAVAGE et al.

Supreme Court of Oregon

March 10, 1908

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by Theresa Jane Savage against Elmer M. Savage and others. From a judgment for defendants sustaining their demurrer to the complaint, plaintiff appeals. Reversed.

Lyman A. Savage died on the 11th day of February, 1898, seised and possessed of a large amount of real property in Marion county, and leaving a will, the material parts of which are as follows: "I, Lyman A. Savage, of Salem, Oregon, being of sound and disposing mind and memory, do make and declare this to be my last will and testament, hereby revoking all wills and testamentary papers at any time heretofore made by me. I give, devise, and bequeath all my real and personal property wheresoever and whatsoever unto my beloved wife Theresa Jane Savage, for the following uses and purposes viz.: First: To support and maintain herself as she may desire during her natural life. Second: She may support and maintain my children or either of them, as long as they or either of them, or their wife, husband, or children may desire to reside with her. Third: To keep up the repairs taxes, and other expenses of said properties or their income or accumulation either in the management or handling thereof. Fourth: In case she may deem it proper or advantageous or she may so desire, she may at any time or times bargain, sell and convey all or any part or parts of my real property and convert the same into money for the use and benefit of my estate. Fifth: She may at any time or times sell and convert into money any part or parts of my personal property for the use and benefit of my estate. After the death of my beloved wife, Theresa Jane Savage, I give, devise, and bequeath the rest and residue of my said property, both real and personal remaining at the death of my wife, to my beloved daughter, Grace E. Savage, and my beloved son, Elmer M. Savage, to be divided equally between them, saving and excepting that there shall be deducted from my son, Elmer M. Savage's share, $2,000, which I have heretofore paid him as an advancement on his share of my estate." On February 16th the will was duly proved and admitted to probate, and Mrs. Savage appointed executrix. July 29, 1898, the estate was finally settled, and executrix discharged. December 7, 1905, Mrs. Savage contracted to sell a five-acre tract of land devised to her by her husband to one John Gueffroy for $3,700; but, owing to the fact that one of the residuary legatees, Elmer M. Savage, claimed some interest therein, the attorney for the purchaser refused to pass the title, and the sale could not be consummated. Mrs. Savage thereupon commenced this suit against Elmer M. Salvage, Grace E. Robbins, legatees under the will, and the purchaser, Gueffroy. In her complaint she sets out the will in full; alleges the probate thereof and the final settlement of the estate; describes the real property of which her husband died seised, and avers that ever since his death she has been in the sole and exclusive possession of such property as the owner in fee, holding it for the uses and purposes set forth in the will; alleges the terms of the contract of sale with Gueffroy, and the reason it was not consummated; avers that defendant Elmer M. Savage wrongfully claims some estate or interest in the property adverse to her, and denies her power or authority to sell the same. The prayer is for a decree requiring him to set forth the nature of his claim, and that it be decreed to be invalid as against the plaintiff. A demurrer to the complaint was sustained, because it did not state facts sufficient to constitute a cause of suit, and plaintiff appeals.

W.W. Cotton, S.T. Richardson, and C.M. Inman, for appellant.

J.P. Kavanaugh, for respondents.

BEAN C.J. (after stating the facts as above).

The position of the defendants concurred in by the court below is that the purpose of this suit is to obtain a judicial construction of a will which, under the rule announced in Edgar v. Edgar, 26 Or. 65, 37 P. 73 cannot be maintained. The complaint contains many unnecessary averments, but manifestly embodies all the essential allegations required in a suit to determine an adverse claim to real estate under B. & C. Comp. § 516. It shows that plaintiff has a substantial interest in, and is in possession of, certain described real property, and that defendant claims an estate or interest therein adverse to her, and this is all that is...