Kidder v. Olsen

31 P.3d 1139, 176 Or. App. 457, 2001 Ore. App. LEXIS 1403
CourtCourt of Appeals of Oregon
DecidedSeptember 12, 2001
Docket98-2330; A109948
StatusPublished
Cited by4 cases

This text of 31 P.3d 1139 (Kidder v. Olsen) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kidder v. Olsen, 31 P.3d 1139, 176 Or. App. 457, 2001 Ore. App. LEXIS 1403 (Or. Ct. App. 2001).

Opinion

HASELTON, P. J.

Plaintiff Dorothea Kidder, a devisee under the will of the decedent, Newell A. Lawley, appeals from a declaratory judgment that, pursuant to the terms of decedent’s will, defendant Heather Gartin has the right to purchase decedent’s farm for $46,160, which represents one-half of the property’s tax-assessed value at the time of decedent’s death.1 We conclude that the trial court correctly construed the will and that Gartin’s failure to tender that price within 180 days of decedent’s death was excused and, thus, did not preclude Gartin’s entitlement to purchase. Consequently, we affirm.

The facts, except as noted, are uncontroverted. Decedent died testate on March 3,1998. Decedent’s will, which he executed on November 7, 1995, contained the following provisions relevant to this dispute:

“2.1 PERSONAL REPRESENTATIVE. I name Heather Louise Parker Gartin, hereinafter referred to as ‘Heather’, as my personal representative. If Heather fails to qualify or ceases to act as my personal representative, I name Dorothea M. Kidder, hereinafter referred to as ‘Dorothea’, as my personal representative.

«Hi Hi * ^ *
“3.1 TANGIBLE PERSONAL PROPERTY. I give any interest I have in household goods and furnishings, personal vehicles, recreational equipment, clothing, jewelry, personal effects, and other tangible personal property for personal or household use, together with any insurance on this property, in substantially equal share to the following persons who survive me: Heather and Dorothea, to be divided equally among them as they agree or, if they do not agree, as my personal representative determines.
“3.1(a) I give all my farming implements belonging to me at my death that are on my farm located at 10874 Swedetown Road, Clatskanie, Oregon to Heather.
[460]*460* * jjc *
“4.1 PRIMARY BENEFICIARIES. I give the residue of my estate to Heather and Dorothea share and share alike and to their descendants by right of representation. EXCEPT, Heather shall have the right to purchase the farm at:
“All Lot #1 in Block #8 in Spitzenberg, according to the duly recorded plat thereof, situated in the County of Columbia, State of Oregon. All mineral rights reserved, but if exercised, full compensation for all damage to land or improvements is guaranteed.
“by paying Dorothea half the then-current tax assessed value in cash or cash equivalent. If Heather does not give Dorothea written notice of her intent to purchase the farm within 60 days of my death and does not close the sale within 180 days of my death, under the terms and conditions specified above, the farm should be liquidated and the value divided equally between Heather and Dorothea.”

Following decedent’s death, Gartin was appointed personal representative.

At the time of his death, decedent owned two pieces of real property, neither of which was located in Spitzenburg. The first, a roughly 90-acre parcel known as “tax lot 500,” is located at 20874 Swedetown Road in Clatskanie, and is described to encompass:

“The North Half of the Southeast Quarter of Section Twenty-six (26), in Township seven (7) North of Range four (4) West of the Willamette Meridian, and also commencing at the Southwest corner of the Southwest Quarter of the Northeast Quarter of said Section twenty-six, and running thence East forty rods; thence North forty rods; thence West forty rods; and thence South forty rods to the point of beginning.”

The second, a forested 40-acre parcel adjacent to tax lot 500 and known as “tax lot 300,” is described as follows:

“North Half (NV£) of North Half (NJ/2) of the Southwest Quarter (SWVi) of Section Twenty-five (25), in Township seven (7) North, Range four (4) West of the Willamette meridian, except sixty-foot right-of-way for CCC and County Roads now located on this property.
[461]*461“Also excepting minerals on or under said property, if any, which are hereby reserved for the benefit of Columbia County, Oregon.”

On March 19,1998, Gartin gave plaintiff notice that, pursuant to the farm purchase option in article 4.1, she intended to purchase both tax lot 500 and tax lot 300 in Clatskanie for the “then-current tax assessed value.” Plaintiff, through her attorney, objected, noting that article 4.1 did not refer to either lot 300 or lot 500, but to a piece of property in Spitzenburg unrelated to decedent’s farm on Swedetown road: “It is not apparent to me how the personal representative can justify going against the plain language in the Will attempting to convert one lot in Spitzenberg into two different pieces of property in Clatskanie.”

Plaintiffs letter also demanded that Gartin voluntarily resign as personal representative, suggesting that Gartin’s proposed purchase constituted a “conflict of interest in attempting to go against the plain language of the Will which she is required to uphold.” Gartin, however, did not voluntarily resign. Consequently, plaintiff filed a request with the probate court seeking Gartin’s removal as personal representative. The probate court, in response, issued an order removing Gartin as personal representative and appointing Harold Olsen as her successor.

On July 30, 1998, plaintiff brought this declaratory judgment action, naming both Gartin and Olsen as defendants. Plaintiffs amended and supplemental complaint of October 28, 1998, sought a declaration

“that Heather Gartin does not have a preferential right under Section 4.1 to acquire the property mentioned in Paragraph 4, or alternatively, any rights that she may have had expired in accordance with the terms and provisions of the Will when the sale was not closed within 180 days of the decedent’s death.”

At the time plaintiff filed her amended and supplemental complaint, she served defendants with a request for admissions under ORCP 45. That request sought defendants’ admissions that: (1) “no sale of any estate asset under paragraph 4.1 of the Will of Newell A. Lawley was closed within 180 days of Newell A. Lawless death”; (2) Gartin “did not pay [462]*462nor tender any money to [plaintiff] within 180 days” of decedent’s death; and (3) Gartin “did not communicate with the successor personal representative * * * in any way within 180 days of the death of Newell A. Lawley, so as to communicate any desire that she may have had to close a sale” as permitted under the will. Gartin, in response, admitted each of those allegations but qualified her admission by arguing that plaintiff was estopped from relying on her failure to close or provide tender. In particular, Gartin argued that the closing deadline was “waived by plaintiff when she petitioned for Heather Gartin’s removal as personal representative to prevent her from closing the sale,” and that “[t]ender to plaintiff was excused by plaintiff’s objections to the sale and petitioning for Heather Gartin’s removal as personal representative to prevent her from completing the sale.”2

The case was tried to the court.

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Cite This Page — Counsel Stack

Bluebook (online)
31 P.3d 1139, 176 Or. App. 457, 2001 Ore. App. LEXIS 1403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kidder-v-olsen-orctapp-2001.