Stubbs v. Abel

• Decision Date: 24 February 1925
• Citation: 114 Or. 610,233 P. 852
• Parties: STUBBS v. ABEL ET AL.
• Court: Oregon Supreme Court

233 P. 852

114 Or. 610

STUBBS v. ABEL ET AL.

Supreme Court of Oregon

February 24, 1925

In banc.

Appeal from Circuit Court, Multnomah County; George W. Stapleton Judge.

Suit for partition by Edith W. Stubbs against W. H. Abel and others, and Richard C. Williams and others. From the decree certain defendants appeal. Affirmed.

This is a partition suit, and involves the construction of a will which is made a part of the pleadings therein. The plaintiff Edith W. Stubbs, on April 5, 1921, filed in the circuit court of the state of Oregon for Multnomah county her complaint, in which she alleges, among other things, that the defendant Security Savings & Trust Company is a duly organized banking and trust corporation. In paragraph 7 she avers that the plaintiff and the defendants Richard C. Williams and Claire S. Williams are owners as tenants in common of certain real property situate in Multnomah and Washington counties, state of Oregon, which property she describes. She alleges that she is the owner of an estate of inheritance in the described property, consisting of an undivided one-half interest in fee simple, and that the remaining one-half interest in that property is owned by the defendants Richard C. Williams and Claire S. Williams, which interest was acquired by them by devise from their grandfather, Richard Williams, under the provisions of the will involved herein. "Plaintiff further avers that in and by said will it was provided that said property so bequeathed to said Richard C. Williams and Claire S. Williams be delivered to and held by the defendant Security Savings & Trust Company in trust for said Richard C Williams and Claire S. Williams until each of them should attain the age of thirty years, at which time said property should be delivered to them by said Security Savings & Trust Company; it being also provided in said will that should either of said grandsons, Richard C. Williams and Claire S. Williams, die before attaining the age of thirty years, his interest in said property should go to the survivor of the two grandsons; * * * that the defendant, Security Savings & Trust Company, of Portland, Or., holds the legal title to said undivided one-half interest in said real property as trustee for said Richard C. Williams and Claire S. Williams, in accordance with the provisions of said will as set out in paragraph 9 hereof." Plaintiff then avers that defendant Hilda Williams claims to hold a mortgage upon the undivided interest of Claire S. Williams in the described real property, but that plaintiff has no knowledge or information sufficient to form a belief as to the character or validity of that mortgage or the note it secures. Plaintiff makes like averments concerning notes and mortgages claimed to be owned by the defendant W. H. Abel, and similar averments concerning the liens asserted by defendants Linnie Smith, Alfred C. Anderson, and Carrie G. Anderson, First National Bank of Hoquiam, Wash., Chanslor & Lyon, and Quimby & Wilson.

The defendant Claire S. Williams died on April 7, 1921, and prior to the service of process. On August 8, 1921, plaintiff filed an amended supplemental complaint, in which she averred the death of Claire S. Williams, and alleged that at the time of his death he was under the age of 30 years, and that under the provisions of the will his interest in the real property described in the complaint being a conditional estate, and acquired by virtue of the testamentary devise made by Richard Williams, had become vested in Richard C. Williams, who was then above the age of 30 years. Plaintiff further avers that Claire S. Williams left surviving him a widow, Hilda Williams, and an only child, Clara Jane Williams. She avers the appointment of the defendant Ben Hur Lampman as administrator, with the will annexed, of the estate of Claire S. Williams, deceased.

The various defendants filed their answers, some of whom averred upon information and belief that Claire S. Williams had reached the age of 30 years prior to his death, and under the will of Richard Williams, deceased, had become entitled to the undivided one-fourth interest in the property described in the complaint, while others admitted that he had not attained the age of 30 years, but alleged that under the terms of the will of Richard Williams, his grandfather, a feesimple title vested in Claire S. Williams in and to the real property described in the complaint, and that under the will he took an unconditional title, in fee, to an undivided one-fourth interest in that real property. All assert the validity of their liens, but some deny the validity of the lien of Hilda Williams and the claims of the defendant W. H. Abel.

The defendant Security Savings & Trust Company, answering, averred that the defendant Richard C. Williams, prior to the commencement of the suit, had reached the age of 30 years; that Claire S. Williams, defendant, died on April 7, 1921, under the age of 30 years:

"That in and by the last will and testament of Richard Williams, deceased, * * * this defendant was appointed and created trustee of an undivided one-half interest in the real property in paragraph seven of plaintiff's complaint described, for the trusts, uses, and purposes which are set out in said will, and this defendant accepted said trust, entered upon the discharge thereof, and is now acting as such trustee."

The defendants Richard C. Williams and Vera Williams, his wife, filed their answer, and averred that the defendant Richard C. Williams was then the owner in fee of an undivided one-half interest in the real property described in paragraph 7 of plaintiff's complaint. Trial was had, and on September 6, 1922, the court filed its findings of fact and conclusions of law, reading, in part, as follows:

"That the estate given, devised and bequeathed to the defendants Richard C. Williams and Claire S. Williams by the will of their said grandfather was, upon final settlement of his estate, paid, turned over, and delivered to the defendant the Security Savings & Trust Company, in accordance with the terms of the will of the deceased, to be held, controlled, managed, and loaned by said Security Savings & Trust Company until said grandsons attained the age of 30 years.

"That the defendant Claire S. Williams departed this life on or about the 7th day of April, 1921, being then under the age of 30 years, namely, of the age of about 28 years."

Based upon the above findings, the court made the following conclusions:

"That Claire S. Williams, grandson of Richard Williams, took under the will of his grandfather a determinable fee in the real and personal property devised and bequeathed to him, as described in the pleadings in this suit, and upon the death of said Claire S. Williams prior to arriving at the age of 30 years, said estate passed to and became vested in his brother, the defendant Richard C. Williams. * * *"

The court further found, as a conclusion, that the various defendants who were asserting liens upon the real property had no right, title, interest, claim or estate therein. Objections were made, and exceptions reserved to the findings and conclusions.

The court decreed "that the plaintiff, Edith W. Stubbs, has an estate of inheritance in, and is the owner of, the undivided one-half, in fee simple," of the real property described in paragraph 7 of her complaint; that the defendant Richard C. Williams had an estate of inheritance in the remaining one-half of that property in fee simple, and that the possession of that undivided one-half interest was in the defendant Security Savings & Trust Company, which company had received the same under the terms of the will involved herein.

The appealing defendants assign numerous errors.

John T. Welsh, of South Bend, Wash., and Homer D. Angell and Jay Bowerman, both of Portland, for appellants.

Welsh & Welsh, of South Bend, Wash., Angell, Fisher & Sabin, of Portland, and Stephen J. Chadwick, of Seattle, Wash., on the brief, for appellant W. H. Abel.

Jay Bowerman, of Portland, on the brief, for appellants Hilda Williams and Ben Hur Lampman, administrator with the will annexed of the estate of Claire S. Williams, deceased.

William E. Campbell, of Hoquiam, Wash., and Angell, Fisher & Sabin, of Portland, on the brief, for appellant Clarence A. Bean.

Albert H. Tanner, of Portland, F. L. Morgan, of Hoquiam, Wash., and John Van Zante, of Portland, on the brief, for appellants Alfred C. and Carrie G. Anderson, and First National Bank of Hoquiam, Wash.

Joseph Simon and Edgar Freed, both of Portland, for respondents.

Dolph, Mallory, Simon & Gearin and Edgar Freed, all of Portland, on the brief, for respondent Edith W. Stubbs.

Chester V. Dolph, on the brief, for respondents Richard C. and Vera Williams.

Blaine B. Coles, of Portland, on the brief, for respondent Security Savings & Trust Co.

BROWN, J. (after stating the facts.)

Rood, in his work on Wills, at section 416, makes the following observation:

" 'Wills and the construction of them do more to perplex a man than any other learning,' said Lord Coke, adding that these surpass the science of law, and history confirms his remark. On no other branch of the law are decided cases of so little value as precedents. Half a century ago Judge Story said: 'The cases almost overwhelm us at every step of our progress (How much more so now!); and any attempt even to classify them, much less to harmonize them, is full of the most perilous labor.' "

The above excerpt was written by Professor Rood more than 20 years ago. Some of the defendants say in their brief:

"Why should the testator desire to cut off his lineal descendants? Such a result is contrary to natural justice, and the court, in the absence of a clear expression of

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