Whitney v. Whitney

Oregon Supreme Court

Whitney v. Whitney

122 P. 289, 61 Or. 314, 1912 Ore. LEXIS 64

DecidedApril 2, 1912

StatusPublished

This text of 122 P. 289 (Whitney v. Whitney) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whitney v. Whitney, 122 P. 289, 61 Or. 314, 1912 Ore. LEXIS 64 (Or. 1912).

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Opinion

Mr. Justice Burnett

delivered the opinion of the court.

We assume that the real property described in the deed from the defendants to the plaintiff belonged to the estate of Robert Whitney at the time of his death. He either [318]*318devised his whole estate in the lands or he devised only a part of that estate. What was devised went to his children, the defendants, who are his only heirs. If there was a residue which he did not devise, it descended to them by operation of law. As said in De Bow v. Wollenberg, 52 Or. 404, 432 (96 Pac. 536: 97 Pac. 717) :

“The title to all realty, upon the death of its owner, passes directly to the heirs of the decedent as tenants in common subject only to the rights of the executor or administrator in possession for the payment of debts.”

Clark v. Bundy, 29 Or. 190 (44 Pac. 282) ; Noon’s Estate, 49 Or. 286, 291 (88 Pac. 673: 90 Pac. 673). Taking the devise of the will and the natural descent of the residue, if any, not devised, the whole title of the land, subject to the life estate of the widow, went to the only persons to whom the land could have descended; that is to say, to the children of Robert Whitney. They having all joined in a warranty deed to the plaintiff, all the title which then they possessed, together with all that they would afterward acquire, in the said land, went to the plaintiff. Taggart v. Risley, 4 Or. 235; Raymond v. Flavel, 27 Or. 219 (40 Pac. 158) ; Gardner v. Wright, 49 Or. 609 (91 Pac. 286). What was devised by the will, plus what, if any, descended by operation of law, when united, as it was by the deed, in the plaintiff, who already had the life estate in the whole tract, comprises the whole estate in fee.

It follows that as against the defendants the plaintiff is the owner in fee simple of the lands described in the deed from them to her, and that the decree of the circuit court must be affirmed, but without costs or disbursements to either party. Affirmed.

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Mr. Justice Burnett

delivered the opinion of the court.

We assume that the real property described in the deed from the defendants to the plaintiff belonged to the estate of Robert Whitney at the time of his death. He either [318]*318devised his whole estate in the lands or he devised only a part of that estate. What was devised went to his children, the defendants, who are his only heirs. If there was a residue which he did not devise, it descended to them by operation of law. As said in De Bow v. Wollenberg, 52 Or. 404, 432 (96 Pac. 536: 97 Pac. 717) :

“The title to all realty, upon the death of its owner, passes directly to the heirs of the decedent as tenants in common subject only to the rights of the executor or administrator in possession for the payment of debts.”

Clark v. Bundy, 29 Or. 190 (44 Pac. 282) ; Noon’s Estate, 49 Or. 286, 291 (88 Pac. 673: 90 Pac. 673). Taking the devise of the will and the natural descent of the residue, if any, not devised, the whole title of the land, subject to the life estate of the widow, went to the only persons to whom the land could have descended; that is to say, to the children of Robert Whitney. They having all joined in a warranty deed to the plaintiff, all the title which then they possessed, together with all that they would afterward acquire, in the said land, went to the plaintiff. Taggart v. Risley, 4 Or. 235; Raymond v. Flavel, 27 Or. 219 (40 Pac. 158) ; Gardner v. Wright, 49 Or. 609 (91 Pac. 286). What was devised by the will, plus what, if any, descended by operation of law, when united, as it was by the deed, in the plaintiff, who already had the life estate in the whole tract, comprises the whole estate in fee.

It follows that as against the defendants the plaintiff is the owner in fee simple of the lands described in the deed from them to her, and that the decree of the circuit court must be affirmed, but without costs or disbursements to either party. Affirmed.

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Bluebook (online)

122 P. 289, 61 Or. 314, 1912 Ore. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-v-whitney-or-1912.

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