8 Or. 118 | Or. | 1879
By the Court,
Lycurgus Hembree died on the thirty-first day of March, 1876, leaving a will made on the eighth day of November, 1875. The material portions of the will are as follows: “2. I give and bequeath to my son, Henry L. Hembree, my farm in Lane county, known as the Green B. lingers donation land claim. 3. I give and bequeath unto my beloved wife, Mary M. Hembree, my town property in the town of McMinville. 4. It is my will that my beloved wife shall have the use, control and management of all my property, both personal and real, during her natural life, or so long as she shall remain my widow, and then the said property shall all go to my son, Henry L. Hembree, except as hereinafter provided. 5. I give and bequeath to my nephew, Frank M, Shadden, one-tenth of all my personal property
This will was admitted to probate on the third day of July,' 1876, and Mary M. Hembree, the widow of the testator, was appointed executrix thereof. Frank M. Shadden died on the thirtieth day of September, 1878, and was at the time of his death twenty-one years two months and six days old. Henry Warren was appointed administrator of his estate. Mary M. Hembree, the widow of the testator, is still living and unmarried, and has duly administered the estate, and paid the indebtedness of the decedent, and has on hand twenty thousand dollars subject to distribution.
This suit was brought by the appellant for one tenth of that sum, under the fifth clause of the will, and the only question presented for our consideration is, whether the bequest to Frank M. Shadden was a vested or a contingent legacy. The intention of the testator is always to govern in the construction of his will, and it is to be so construed, if possible, as to harmonize the several provisions and give effect to them all. But in cáse of doubt or uncertainty as to whether the testator intended to give a vested or contingent legacy, certain rules have been laid down by elementary law writers and by the decisions of courts to govern in the
Tested by the rules here laid down, tbe bequest to Frank M. Shadden in the fifth clause of the will was clearly a vested legacy, and the words “to be given to him when he is twenty-two years of age,” are equivalent in meaning to the words “to be paid to him when,” etc., and it is conceded that if the latter phraseology had been used by the testator, the legacy would have vested on his death in the legatee. Other portions of the will tend to show that this was the intention of Lyeurgus Hembree, when he made his will. By the sixth clause it appears that he was especially careful to provide how his other property should be disposed of in the event of the death of his wife and son before the latter should become twenty-one years of age, but in regard to the one tenth part bequeathed to Frank M. Shad-den, he made no disposition whatever in case of his death, showing clearly, we think, that the testator considered this portion of his estate as finally disposed of and that it would become vested in Shadden as soon as the will should take effect. But it is contended in behalf of respondent that this construction is inconsistent with the provisions contained in the fourth clause, and that the widow is entitled, during her life and widowhood, to the use, control, and management of all the property of the testator, including as well that bequeathed to Shadden as that which was devised to his son. That is not the proper construction to be placed upon this provision of the will. The last words of it, “ except as herein provided,” exclude the idea that she was
