17 Or. 590 | Or. | 1889
Lead Opinion
This is an appeal from tbe order of the county court Of Union County; making certain allowances under a will of M. Jasper, of that county, for the support and maintenance of his wife and two minor children, which the defendant, as executor, did not fully comply with, and upon a subsequent petition, citation was issued for him to show cause why the order had not been obeyed, etc. Briefly, the facts are these:'M. Jasper died April 9, 1885, leaving a will, which Was duly probated, and in which he named as executor W. It. Jasper and George G. Gray. On petition, W. It. Jasper was appointed sole executor of the will. Subsequently, the plaintiff filed her petition, setting forth that she was the widow of M. Jasper, deceased, and that under his will she was entitled to her support and the support of her two minor'children, and on July 6,1887, the' county court made an order requiring the defendant, as such executor, to pay to thedefendaut the .sum of six hundred dollars per annum for the year commencing April 9, 1887, for such Support and maintenance. The defendant not fully complying with such order, on December 8, 1887, the plaintiff, by petition upon the facts therein stated, prayed that the defendant, as such executor, might be required to show cause'why he had not complied with such order. In'response to such citation upon such petition, the defendant appeared and demurred, which the court overruled, whereupon'he answered, which not proving satisfactory to the court upon the hearing, he was ordered to comply with the original order made herein, etc. An appeal was taken to the circuit court, and the
The question to be determined is, Had the. county court jurisdiction to make the order of July 6, 1887, requiring the defendant, as executor of the will of M. Jasper, -deceased, to pay to the plaintiff, as his widow, the sum of six hundred dollars per annum for the support and .maintenance of herself and children? It is agreed by .counsel that the proper determination of this question depends upon the construction to be given to certain clauses in the will of M. Jasper, deceased. The will begins . by devising a certain tract of land, known as the Trimble .farm, and described therein, to the plaintiff, “to have and to hold the same as long as she 'remains my widow, or until my two minor children, Frank C, Jasper and Willard Jasper shall reach the age of twenty-one years.” .There .then follows several bequests to his other children of the sum of ten dollars each, and to one of them a certain horse, called Black Hawk.
Now come the provisions under which the support is claimed, and out of which the controversy arises. It is .this: “After the payment of my debts and the legacies hereinbefore mentioned and given, I give all the residue ■ of my estate, both real and personal, of every kind and nature, including the remainder in the lands hereinbefore mentioned, as given and bequeathed to Emily Jane Jasper, after the termination of her said estate in said lands, to my executors, to hold and to keep and collect the rents and profits of said property until my two minor children, .Frank C. Jasper and Willard Jasper, sháll reach the age of twenty-one years; and my executors shall pay out of the income from my said property to Emily Jane Jasper, yearly, such sum or sums as may be necessary for the support and maintenance of said Emily Jane Jasper, and
In construing wills, the principle is familiar.and well understood that the intention must govern. A will is defined to be “the legal declaration of a rpan’s intention which he wills to be performed after his death.” (2 Bla.
In the case at bar, however, we are confined solely to a construction of the instrument according to the words used, viewed as a whole, as the record discloses no extrinsic facts by which the language of the will in the discovery of its meaning can be aided. Nor can much assistance be gained by decided cases, so diverse are the terms of such instrument, and so varying are the facts in which they originate. So that it has been well and truly said that cases On wills may guide us to general rules of construction; but unless a case cited be in every respect directly in point and agree in every circumstance, it will have little or no weight with the court, who will always look upon the intention of the testator as the pole-star to guide them in the construction of wills. (Smith v. Bell, supra.)
Now, turning to the will, let us ascertain, from an examination of it, when it is that the executors are required to pay out of the income of the testator’s property such. sum or sums as may be necessary to furnish a support to the plaintiff and the minor children; for until that duty is devolved upon the executors by the will, no court is au
By reference to the provisions of the will already referred to, it will be observed that it is “after the payment of my debts, and the legacies hereinbefore mentioned and given,” that the testator gives all the residue of his property, both real and personal, to his executors. It is only when the executors have paid his debts and these legacies before mentioned that the residue can be ascertained, which is, by the terms of the will, to be vested in trust in his executors for the purposes specified; and the legacies here referred to cannot mean any legacies or charges which are to be paid out of the income of the residue of his property which such executors are to hold in trust. When these are paid, — the debts and legacies before mentioned, — whatever else is fastened on the residue of the property with which the executors are invested, and to be paid out of it on its income, only commences when such residue is ascertained, or, in other words, “after the payment of the debts and the legacies before mentioned.” This must be so, not only according to the natural order of things, but according to the plain language of the will so far as we have gone. Now, what is the object of putting this residue of his property in trust in the executors of his nomination, so far as it relates to the purposes we are considering?
The will says that the testator gives the residue of his property, both real and personal, to his executors, “to hold and keep, and to collect the rents and profits of said property” until the minor children, whose ages then were
As the record discloses that the .debts were not paid, and the estate is still unsettled, it necessarily results that the residue of the estate to be held 'in trust is not definitely ascertained -from which such income is to be ,de
It is the opinion of the writer that when the residue of the property is taken in trust, the executors, although named as such in the will, are testamentary trustees, and the jurisdiction over them, and the estate held in trust by them, belongs exclusively to the equity jurisdiction. According to my view, the duty to pay debts and legacies is strictly executorial, and when this is fully performed or accomplished, and the property is taken in trust by them for the purposes specified, and others thereafter mentioned in the will, they are trustees, and not executors, and subject to equity, and not to probate jurisdiction.
The will clearly contemplates a period of time when there shall be a separation of functions and duties,— when the duties of the executors as such shall end, and when, by reason of the trust invested in them by force of the will, they shall assume exclusively the character of trustees. (Conklin v. Edgerton, 21 Wend. 438; Painter v. Clarke, 13 Met. 220; Wills v. Cowper, 2 Ohio, 124; Knight v. Loomis, 30 Me. 204; Layten v. Davidson, 95 N. Y. 265; Smith v. McConnell, 17 Ill. 135; Vardeman v. Ross, 36 Tex. 111; Greenough v. Wills, 10 Cush. 576.)
' It results, according to my view, that the county court is without jurisdiction to make any order in the premises, but that when the residue is definitely ascertained, and the trust vested, the duty of collecting the- rents and profits, and of paying the sum or sums necessary to support the plaintiff and the minor children, is devolved upon the holders of the trust, — the trustees, — and the jurisdiction over the estate so held in trust and of the trustees is wholly of equity cognizance.
It is due, however, to say, although there is other provision made in the will for the plaintiff, that the testator evidently contemplated a speedy settlement of his estate by the payment of his debts and the legacies mentioned and bequeathed, so that the residue of the estate from which such support is to come may be definitely ascertained and be devoted to the purposes specified; yet it was-indicated at the argument that there had been unnecessary delay, and perhaps neglect, in not settling the estate sooner; but in view of the fact that the widow and children have received certain sums for their support, and that it was needed, it is highly expedient that these debts and legacies, if not paid, be paid at once, and the estate settled, so that the objects of the testator’s bounty may receive the proper sum or sums as may be necessary out of the income, but hot in excess of it, for their support and maintenance.
The decree is reversed.
Concurrence Opinion
concurring specially. — I am unable to concur in the conclusion intimated that the county court is without jurisdiction to ascertain the amount of support to be allowed Mrs. Jasper under the will, and to order its payment. It is true, the amount of the allowance must be confined to “income,” and cannot be drawn from any other source; still, I have no doubt by the constitution and laws of this state the county courts are vested in such cases with full jurisdiction over the whole matter of wills, and the direction of the payment of bequests and legacies, and that such jurisdiction continues from the grant of letters testamentary until the performance of the last act necessary to a full and complete execution of the will. By article 7, section 12, of the constitution of this state, it is provided: “The county court shall have the jurisdiction pertaining to probate courts and boards of county commissioners, and such other powers and duties, and such civil jurisdiction not exceeding the amount or value of five hundred dollars,” etc.; and by section 895, Hill’s Code, exclusive jurisdiction, in the first instance, is vested in the county courts pertaining to a court of probate, among other things, — 1. To take the proof of wills; 2. To grant and revoke letters testamentary of administration and of guardianship; 8. To direct and control the conduct, and settle the accounts, of executors, administrators, and guardians; 4. To direct the payments of debts and legacies and the distribution of the estates of deceased persons. I cannot doubt that the object and effect of this provision of the constitution and the statute cited vested in the several county courts of this state a jurisdiction which is exclusive over all the subjects specified, and that the matter now before the court is one of the subjects of jurisdiction specified therein. The jurisdiction of the court is co-extensive with the trusts; it is to continue as long as the executorship continues; all the