| Or. | Dec 18, 1923
Lead Opinion
There is but one question in this case, and that is the construction to be placed upon the language used by the testatrix in making her will.
It is a well-known rule of law in this state, so thoroughly established as to require no citation of authorities, that where real property is specifically devised and such property is subject to a mortgage made by the testator, such mortgage is to be satisfied and discharged out of any property not specifically devised, if such property is sufficient for the purpose
We do not regard the words “rest, residue and remainder of my estate” as in themselves controlling in this case. In interpreting the will we take it by its four corners in order to discover the real intent of the testator. Here we have a specific devise of property to Frank E. Hodgkin, with remainder to Mrs. Spooner, and of other property to Hodgkin himself, without any remainder over, with no mention of any mortgage and no attempt to charge the payment of the mortgages upon any particular fund or any particular property, except in so far as the law would accomplish this purpose, and which, in the absence of some other controlling clause indicating intent, would be accomplished by requiring the encumbrances to be discharged out of the residimm of the property. Here we discover in the will an apparent intent to create a specific trust in at least a portion of the property left and an elaborate provision for the administration of the trust so created. If we credit the testatrix with ordinary sense and knowledge of her affairs, and she seems to have been a business woman to some extent, we cannot assume that it was her intent to make provisions for the administration of this trust in the Jennings Lodge property, which is specifically mentioned, and at the same time subject it to the discharge of other encumbrances upon other property, which would, in effect, defeat the trust. To do this would be to say that the testatrix when she sat down to execute this will intended to do the very last thing which could possibly have been in her mind, namely, to create a trust in property which must
We have no right to consider statements made by her as to her intentions, but must derive them from the language of the will; but we do have the right, in construing that language and in order to ascertain the intent, where the language is not so plain as it might be, to consider evidence as to the value and extent of the property. The Jennings Lodge property is particularly mentioned in the trust of the will and, so far as it is concerned, the devise is just as specific as the devise to Hodgkin or Mrs. Spooner, and while the will is inartificially drawn in that respect, we think, taking this clause as a whole, that it was not the intention of the testatrix, in using the words “rest, residue and remainder of my estate, including my estate in the Jennings Donation Land Claim,” actually to leave this property in the condition of a residuum which might be used to pay off debts on other property not more specifically mentioned or described than the Jennings Lodge property.
The will is to 'be interpreted not by one particular clause, but by its whole tenor, and, judging the will by this standard, we believe it to be the evident intent of the testatrix in specifying the Jennings Lodge property to place it on an equality with the other devises and not to sacrifice it to the exigencies of the encumbrances on the property devised to Hodgkin and Mrs. Spooner, and as to that property the decree will be modified to the extent that it shall not be included in the sale. Modified.
Rehearing
Rehearing denied March 4, 1924.
On Petition for Rehearing.
(223 P. 738" court="Or." date_filed="1924-03-11" href="https://app.midpage.ai/document/marshall-v-marshall-6908129?utm_source=webapp" opinion_id="6908129">223 Pac. 738.)
In the petition for rehearing stress is laid upon the assumption that the devise to respondent was in lieu of curtesy. It is true, as shown by Section 10070, Or. L., that a devise of lands, where nothing appears to evince a contrary intent, puts the devisee upon her election to take by the will instead of standing upon her right to dower, and it may be conceded for the purposes of ’this discussion that Chapter 87 of the General Laws of Oregon for 1907 is broad enough to enable all the statutes applicable to dower to apply to the new estate, or curtesy, created by that chapter. But we are not dealing with legal abstractions or technical distinctions. We deal with the intent of the testatrix, as manifested by what she says in her will, as interpreted by those circumstances necessarily inseparable from it. In her mind was an intent to give respondent certain specific pieces of real estate, which were mortgaged, not for her debt, but for the joint and several obligations of both. As to the tract in Oregon, respondent took an estate by curtesy; as to the tract in Washington, over which we have no jurisdiction, we cannot, as a matter of law, say what estate he took, as we cannot, in the absence of a pleading, take judicial notice of the laws of a sister state, even though we
However, taking the will as a whole, we conclude that it was the intention of the testatrix that each specific devise was to be taken cum onere. This view of the testatrix’s intent is strengthened by the fact that the mortgages upon the property devised to petitioner were mortgages to secure promissory notes executed as well by himself as by the testatrix; and to subject all the specific devises of realty to share equally or pro rata in the payment of these liens would be, in effect, requiring the devisees of the Jennings Lodge property to sacrifice that property to pay petitioner’s debts, which the testatrix certainly never intended.
The property not specifically designated in the will should first be sold to pay any general indebtedness of the estate. It is not “for the interest of the estate” that the administrator should redeem the encumbered Yancouver and Portland property from the lien of the mortgages upon them. In the ordinary course of affairs property mortgaged for the purpose of borrowing money is sufficient in value to satisfy the liens upon it, and if, upon foreclosure, it should turn out otherwise, it will then be time to consider what should be done to satisfy possible claims.
Except as here indicated, we adhere to our original opinion. Rehearing Denied.