Ramsey v. Stephenson

56 P. 520, 34 Or. 408, 1899 Ore. LEXIS 24

• Court: Oregon Supreme Court
• Decided: March 27, 1899
• Status: Published

Opinions

Mr. Justice Bean

delivered the opinion.

The only question in this case is the proper construction of that portion of the ninth clause in the will of Frederick H. Ramsey, deceased, which reads as follows : “I give, devise, and bequeath all the rest and residue of my property, real, personal, and mixed, of which I may die seised, unto the said A. W. Lambert, in trust, nevertheless, to sell and dispose of the same, and to convert it into cash, and divide the proceeds equally among the heirs at law.” At the time of the testator’s death he left, surviving him, a brother and sister, six children of a deceased brother, five children of one deceased sister, and six children of another ; and the question is whether these heirs take per capita, or by right of representation. There is nothing in the other provisions of the will, or the surrounding circumstances, throwing any light on the testator’s intention; but it must be gathered from the clause quoted.

For the plaintiffs it is contended that the money realized from the sale of the residue of the estate of the decedent should be distributed among the nineteen heirs in equal parts, while the defendants contend that it should be divided into five parts, and distributed per stirpes, and not per capita. The argument on both sides is based to some extent on decisions, some of which are in point on each theory. The courts all agree, however, that the intention-of the testator must govern, if it can be ascertained from the language used, and that analogous decisions are of importance only as aids in ascertaining such intention, when it is doubtful. It may, perhaps, be stated as a general rule that, under a devise to heirs, without naming them, which therefore necessarily compels a reference to the statute of distribution to ascertain who shall take under the will, the devisees will take in the proportion prescribed by the statute, and, if not of equal degree, they will take by right of representation, or per stirpes, and not per capita, in the absence of a declaration in the will to the contrary, or in case the intention of the testator is in doubt: Richards v. Miller, 62 Ill. 417; Dagget v. Slack, 8 Metc. (Mass.) 450; Bassett v. Granger, 100 Mass. 348; Bailey v. Bailey, 25 Mich. 185; Conklin v. Davis, 63 Conn. 377 (28 Atl. 537); Wood v. Robertson, 113 Ind. 323 (15 N. E. 457); West v. Rassman, 135 Ind. 278 (34 N. E. 991); Woodward v. James, 115 N. Y. 346, 359 (22 N. E. 150); Eyer v. Beck, 70 Mich. 179 (38 N. W. 20). This rule is founded on the presumption that the testator, haying made a resort to the statute necessary to ascertain who are his beneficiaries, intended that it should also govern the proportion in which they should take, unless he expressed a different intention. But when he prescribes the mode of distribution there is no room for presumption, and it must be made as he directs.

Now, in the case at bar, the language of the will indicates clearly the intention of the testator as to the manner of distribution, because he expressly declares that it shall be made ‘ ‘ equally ’ ’ among the heirs at law, and this direction must prevail: Scudder v. Vanarsdale, 13 N. J. Eq. 109; Allen v. Allen, 13 S. C. 512 (36 Am. Rep. 716); Maguire v. Moore, 108 Mo. 267 (18 S. W. 897); Bisson v. West Shore R. R. Co., 143 N. Y. 125 (38 N. E. 104); McKelvey v. McKelvey, 43 Ohio St. 213 (1 N. E. 594); Johnstone v. Knight, 117 N. C. 122 (23 S. E. 92); Brittain v. Carson, 46 Md. 186. Under the terms of the will, resort to the statute is necessary to determine who are the persons entitled to take, but not to ascertain how they shall take. By the phrase “ heirs at law” the testator designated his devisees, and by the word “ equally ” the manner in which they should take. It is difficult to conceive what language the testator could have used better adapted to make his intention manifest. He directs that his trustee shall sell and dispose of the residue of his estate, and divide the proceeds equally among his heirs ; and we do not feel justified in substituting for his declared will a mode of distribution by which his property will not be so divided. It is true some of the authorities cited by defendants do not support this conclusion: Baskin’s Appeal, 3 Pa. St. 304 (45 Am. Dec. 641); Hoch’s Estate, 154 Pa. St. 417 (26 Atl. 610); Kelley v. Vigas, 112 Ill. 242. These cases proceed upon the theory that because the statute of distribution has to be consulted in order to ascertain who are heirs it must also govern as to the manner of the distribution, notwithstanding the language of the will. This reasoning overlooks the fact that the testator himself has indicated the quantum of the estate which each heir shall take, and that it is only necessary to consult the statute for the purpose of determining who are heirs. In other words, the statute governs in ascertaining who shall take, but the will controls in determining the quantum to which each beneficiary is entitled. There is, therefore, no necessity for resorting to the statute to ascertain the manner of the distribution ; nor can it be done, it seems to us, without disregarding the expressed intention of the testator. It follows, from these views, that the decree of the court below must be reversed, and it is so ordered, and the cause remanded, with directions to overrule the demurrer to the complaint.

Reversed.