Hodgkin v. Miller

221 P. 169, 110 Or. 381, 1923 Ore. LEXIS 191

• Court: Oregon Supreme Court
• Decided: December 18, 1923
• Status: Published

Opinions

McBride, C. J.

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 and no different intent appeals in the will. So the question here is: Does the clause in the will creating the trust in Miller amount to a specific devise of the Jennings Lodge property described therein?

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 necessarily be exhausted in the payment of other debts and thereby render nugatory the elaborate directions that she had made for the administration of the trust property.

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.

For the petition Mr. John B. Cleland and Mr. George B. Young. Contra, Mr. Fred Jensen and Messrs. Bronaugh S Bronaugh.