Worley v. Taylor

• Decision Date: 01 February 1892
• Parties: WORLEY v. TAYLOR et al.
• Court: Oregon Supreme Court

28 P. 903

21 Or. 589

WORLEY v. TAYLOR et al.

Supreme Court of Oregon

February 1, 1892

Appeal from circuit court, Douglas county; MARTIN L. PIPES, Judge.

Suit in equity to quiet title by F.O. Worley against Mary E. Taylor Charles Taylor, Ella Gibson, formerly Ella Bland, widow of John Bland, deceased, Olive Robinson, Mary S. Jones, and Edward Bland, Henry Bland, Dora Bland, and H.M. Bland, minor heirs of Henry Bland, deceased. Decree for defendants. Plaintiff appeals. Affirmed.

J.C Fullerton, G.W. Colvig, and E.B. Preble, for appellant.

Lane &amp Lane and W.R. Willis, for respondents.

LORD J.

This is a suit in equity brought by the plaintiff against H.M. Bland defendant, and others, to quiet title to certain land described in the complaint. In substance, the facts alleged are these: That on the 26th day of November, 1879, the plaintiff purchased the land in question from one Lewis Chapman, and has been in the possession of the same ever since; that on the 21st day of July, 1879, the said L. Chapman purchased the same from Mary E. Bland, now Mary E. Taylor, who was the widow of Henry Bland, for the consideration of $3,500; that the other defendants, except Charles Taylor, are the children and heirs at law of said Henry Bland, deceased, who, on the 6th day of August, 1873, was the owner of said premises, and made his will, whereby he devised and bequeathed all his real and personal property as follows: To Mary E. Bland all his real property after payment of all his just debts, and to each of his six children therein named the sum of $25; Mary E. Bland was nominated executrix of said will; that Henry Bland died on the 25th day of September, 1874, but that after the making and execution of said will, and before the death of said testator, a son, Henry M. Bland, one of the defendants herein, was born; that the said will was duly admitted to probate, and that thereafter, on the 12th day of April, 1875, the said Mary E. Taylor, then Mary E. Bland, was duly appointed, and thereafter duly qualified, as executrix; that on the 3d day of May, 1875, said executrix filed in the county court an inventory and appraisement of all the property belonging to the said estate, and that on the 31st day of March, 1880, the said executrix filed in said court her final account in settlement of said estate, from which final account it appeared that the sum of all the debts presented to and allowed and paid by her as such executrix against said estate, together with the expenses of the administration hereof, equalled the sum derived by said executrix from the sale of all personal and real property belonging to said estate; that on the 6th day of July, 1880, the said court, by order duly made, accepted the said final account, and confirmed the same in all things, and by said order released said executrix and her bondsmen from all further liabilities in said matter; that the said real property sold and conveyed by the defendant Mary E. Taylor to the said Lewis Chapman, as aforesaid, was worth no more than the sum paid therefor by the said Chapman to the said defendant, and that it was sold for the sole purpose of settling the debts as aforesaid, and was applied by her, as such executrix, in the payment of said debts, and that all the property belonging to said estate was sold, and the proceeds applied to the payment of the just debts of said testator, and that none of the heirs named in said will ever received anything by virtue of the provisions thereof; that the said defendant Henry M. Bland claims some interest in the said real property adverse to said plaintiff, for the reason that said defendant was not named in the will of his father, the said Henry Bland, deceased, the nature and extent of which is unknown; that the other defendants claim adversely to plaintiff, etc.; and that said claim of defendants is without right; and prays that the plaintiff be decreed to have a good and valid title, and that the defendants be debarred from asserting any claim adverse to the plaintiff. The answer of the defendant Henry M. Bland, by his guardian ad litem, is to the effect that he denies that the plaintiff is the owner of the real property in question, or any part thereof, more than an undivided six-sevenths thereof; denies that his claim is without any right whatever, etc.; but alleges that he is the owner in fee, as heir at law of Henry Bland, deceased, of an undivided one-seventh interest of, in, and to the premises described in the complaint; and prays that he may be adjudged and decreed to be the owner of the same. The reply put in issue all the material facts alleged in the answer. The case was argued and submitted to the trial court upon the pleadings, and the judgment rendered therein was to the effect that the plaintiff and the defendant Henry M. Bland, minor, are owners in fee-simple as tenants in common of the described premises; the plaintiff, F.O. Worley, of the undivided six-sevenths thereof; and the defendant Henry M. Bland of the undivided one-seventh thereof. By the terms of the will, when the testator devised the land in dispute to his wife, then Mary E. Bland, now the defendant Mary E. Taylor, "after the payment of all his just debts," according to the prevailing doctrine of English equity jurisprudence, he created a charge by implication, though not specific, upon the land devised. 2 Story, Eq.Jur. § 1246; 3 Pom.Eq.Jur. § 1247, and notes.

The contention for the plaintiff is that, when lands are so charged in the will of the testator for the payment of debts a power to sell the lands will be implied to the executor and devisee; and therefore that the executrix and devisee of the present will had the implied power to sell the land in controversy for the payment of debts as alleged. But this doctrine of an implied power of sale has had doubts cast upon it by the case of Doe v. Hughes, 6 Exch. 223, in which it was held that there are no implied powers in executors to sell lands arising from a mere charge of the debts upon the land made by the will. At common law the lands of a deceased person were not liable for his debts, nor was the decedent for his specialty obligations, except when the heir was bound. "But equity," as RUFFIN, J., said, "ever anxious to have just debts paid, strove to apply the real estate to their satisfaction, since otherwise they would remain unpaid. This was effected by holding the devisee to be a trustee for creditors, if the testator gave any intimation that such was his wish. The slightest expression was sufficient,--as, 'if he talks about his debts in the beginning of his will,'--for it is considered that he meant to go beyond the law in making a provision; else why not leave it to the law by being silent. Williams v. Chitty, 3 Ves. 545." Dunn v. Keeling, 2 Dev. 285. It was for this reason--to effect the just purpose of paying the debts of the deceased--that equity gave to such general expressions in a will such construction and meaning.But the necessity for such construction in many jurisdictions does not now exist. The necessity as well as the reason for it has been superseded by statutes which make the lands of the decedent liable for the payment of all his debts. Under the provisions of our Code, the real estate of every deceased person is chargeable with the payment of his just debts, funeral charges, and the expenses of administration, except that the personal estate is primarily chargeable with them, unless the deceased by his will has otherwise directed. Hill's Code, § 1142 et seq.; Wright v. Edwards, 10 Or. 298. ...