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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (May 2, 1911)
PAGE TWO. "H3 DAILY CATHMj JOVnSAU,. MLQL OREGO.V. TUESDAY, MAY 2, 1011. the capital journal E. HOFER, Editor and Proprietor. aadcpendant Newspaper Devoted to American Principles and the ProcTeu and Develooawnt of All Oregon Published Every Evening Except Sunday. SUBSCRIPTION HATES! (Invariably In Advance) . Ckllr, by Carrier, per year $6.00 Per month- , 60c Cklly, by Hail, per year . Per month 85c Veekly, by Mall, per year 1.00 Sis months Ifit FULL LEASED WIRE TEi-EGRAPH REPORT AN INTERESTING DECISION ON INTERPRETATION OF WILLS The Will and Codicil of a Rich Portland Man Causes Much Litigation, But Is Finally Settled by the Supreme Court Some Knotty Points on which Precedents are Wanting and Decisions at Variance Are Decided. OREGON SUPREME Full Text Published by Courtesy of Supreme love t. Walker, et ol, Multnomah County. Green C. Love, respondent, v. Em ma J. Walker, Alslsstress L., Peach er, Nancy M. Flnke, Sarah R. Ander son, Lena O. Richmond, Sidella F. Hohmann, Lewis G. Stafford, Mary C. Stafford, Hazel King, appellants. Belle Robinson, Frank Souers, Inlta Souers, Dixon and Jacob Samuels, defendants. Appeal from the circuit court for Multnomah county. Hon. Earl C. Bronaugh, Judge. Argued and submitted March 28 1911. H. J. Big ger and Wallace McCammant, for re spondent. Wm, M. Gregory and Dan J. Malarkey for appellants. Moore, J. Reversed. This Is a suit to determine an ad verse Interest in real property. The facts are that on January 5, 1899, a last will and testament was made and published as follows: "Know all men by these presents: That I, Lewis Love, of Portland, Multnomah county, Oregon, being over the age of 80 years, and being of Bound and disposing mind and memory, do make and declare this as my last will and testament, In manner and form fol lowing, that is to say: I make, con stitute and appoint T. T. Struble, Phllo Holbrook and II. C. Breeden executors of this my last will and testament, and request and direct that no bonds or undertaking be re quired of them as such, nor of them as trustees to hold my estate to a certain time hereinafter mentioned. 1 direct that all of my Just debts, In cluding funeral expenses and the ex penses of administration be paid by my executors. In order that my pur pose and ownership of property shall he clearly understood, I hereby pre face my devises and bequests as fol lows: I have made no deed to any person or persons to any real or per sonal property to take effect at or af ter death. I made five deeds to my children and grandchildren Septem ber 21, 1894 which were executed and acknowledged before T. T. Stru- tle, notary public. I made eight deeds to my children, grandchildren end grandchild December 28, 1898, which were also acknowledged be fore T. T. Struble, notary public; other than these mentioned deeds, I have made none since the first men toned ones of date September 21, 1894. I am the owner absolute of the following real property In the city of Portlnnd, Oregon: Lots land 2, block 117, city; lot 4, block 116, city; lot 3, block 10, city; north half lot 2, block 10, city; lot 8 block 111, city; south half of lot 2 block 4, city; the east 75 feet and 11 inches of the south half of lot 4, block 3. city; the north half of lot 4, block 3, city; the south half of lot 3, block 3, city. I have never made a deed to any per son or persons of any part or piece of this property whatever. I also own 757 acres, more or less, of land In sections 10, 11, 14 and 15, town ship 1 north, range 1 east, Willam ette meridian; a portion of this land Is outside of and a portion inside of the city limits of Portland, Oregon. I have made no deed to any of this acreage to any person or persons at any time, except for Columbia Ceme tery. It is my purpose to will at this time all of my property personal, real and mixed, to my legal heirs In the same proportion as the law would convey the same to them in the ab sence of any will by me reserving only the burial place where my wife is now burled, and a strip of land two feet In width adjacent thereto on the west north and east of said bur ial spot, and I hereby set aside said burial place (spot) and said two feet I THI A 11 Ayer's puis are liver pills. All vege Jl Or Sill table, sugar-coated. A gentle laxative for all the family. Consult your doc tor treeiy about these pills and about ail medical matters. a a .... roiiow nts imvice. lie crtninl" knovs brrt. H. M. HOFER, Manager Sflem, Ora. COURT DECISIONS F. A. Tamer, Exporter of the Court. of land adjacent thereeto forever as a resting place or burial spot for wife and myself; said burial place joins Columbia Cemetery on the northwest corner, which said ceme tery is in section 10, township 1 north; range 1 east, Willamette mer idian. "My will Is and I direct that my estate shall be divided Into six (6) shares or parts of equal value, to be disposed of in the following manner, viz: First. I give, devise and be queath to my son, Fred D. Love, one of said shares or parts. Second. I give, devise and bequeath to my son, Green C. Love, one of said shares or parts. Third. I give, devise and be queath to my son, Lewis P. Love, one of said parts or shares. Fourth. I give, devise and bequeath to my grandson William King, a son of my deceased daughter, Mallnda J. Shep herd, one third part of one, of said shares or parts. Fifth. I give, de vise anil bequeath to my grand daughter, Matilda Shepherd, wife of James Shepherd, and a daughter of my deceased ' daughter, Mallnda J. Shepherd, one-third part of one of said shares or parts. Sixth. I give, devise and bequeath to my great granddaughter, Hazel King, who is a minor child, and a daughter of Al bion King, deceased, who is a son of my deceased daughter, Mallnda J. Shepherd, one-third part of one of said shares or parts. Seventh. I give, devise and bequeath to my daughter, Mary C. Stafford, one of said shares or parts. Eighth. I give devise and bequeath to the children of my deceased son, William Love, one of said shares or parts of my es tate to be divided among said child ren as follows: To L. W. Love, the one-fifth part of said share; to John A. Love, the one-fifth part of said share; to Ulysses G. Love, the one fifth part of said share; to Charles W. Love, the one-fifth part of said share; to Frank P. Love, the one-fifth part of said share. "It is my will and purpose that my estate shall be kept Intact and not distributed to my devisees till Jan uary 1, 1907, (nineteen hundred and seven). I direct that my executors shall proceed to administer upon my estate at once after my demise, and having In due time closed up my es tate as executors, that then my es tate shall pass to them as trustees, to be held in trust for my said devi sees till January 1, 1907, and man aged by them as such trustees till the time of final distribution. I di rect that my trustees, T. T. Struble, Phllo Holbrook and H. C. Breeden, from time to time as the receipts of my estate may exceed the expendi ture, such porton thereof as in the Judgment of my said trustees can safely be distributed, be distributed and paid to the devisees pro rata not oftener than two times in each 12 months. I direct that my trustees make final distribution of my estate on January 1, 1907, or as soon there after as practicable,, and If my de visees can agree, said final distribu tion can be by division of my prop erty by such agreement, but if they cannot so agree, then my trustees shall make a division of my property according to the shares and parts of shares In my estate and my devisees can cast lots for their several Inter ests either In person or by their law ful representatives. Be It remem bered, however, that in the adminis tration of my estate by my executors, and before they close up my estate. and It passes to them as trustees, all personal property Is to be sold, and the proceeds of such sale will belong J. 0. A V. to and become a part of my estate. "In their trust my trustees are hereby empowered to rent property and collecvt rents, make necessary repairs to property, pay taxes, or to be more explicit, they are empowered hereby to collectlvly do all acts that I would do were I living, necessary to protect and keep my estate Intact for my devisees hereinbefore men tlond. Should a vacancy occur In my trustees, then the remaining ones or one are to act and carry out this trust. This Is my only will, but ' I now refer to a canceled will made by me April 13, 1896, for the purpose of corroborating the Idea that it was always my purpose to distribute my property equally between my several children and to the heirs of those of my children who had died, leaving children or grandchildren. "Be it remembered that reference to said canceled will should not make it a part of this will, but only to show what my Intentions have al ways been toward my heirs. Refer ence to the fact In this will that I am the owner of and have made no deed to certain property, is because I have been Informed' reliably, of one fraudulent deed to certain valuable property purporting to have been made by me and also have heard ru mors of the existence of another fraudulent deed. I pronounce and declare all such deeds or deed as fraudulent; and any and all claims of any person or persons of having genuine deeds or titles to any of the property hereinbefore described, are false and villtanous, and I hereby in struct my executors and trustees to contest any such claims to the utter most, that my property may be kept intact and saved to my lawful heirs as herein devised. And lastly, I do hereby revoke all other wills here tofore made by me, and -declare this and no other to be my last will and testament, and desire that of this proof shall be taken and admitted to probate as a muniment of 'title. In witness whereof I have Jiere unto set my hand this 5th day of January, 1899. (Sgned) Lewis Love. '(Seal). "The above instrument was at the date thereof signed, sealed, published and declared by the said Lewis Love as and for hs last will and testament, In presence of us who at his request, and In the presence of each other, have subscribed our names as wit nesses thereto. (Signd) O. P. S. Plummer. Residing at Portland, Ore gon. Edward Holman, residing at Portland. Oregon." At the time the will was made plaintiff was a widower and two children of a deceased daughter were his only living issue. He subsequent ly remarried, however, but no Issue resulted from the unon. A supple mental testament was made of which the following Is a copy: "I, Lewis Love, of Portland, Oregon, do make this codicil to my will. I hereby ex- pressly confirm my last will, dated January 5, 1899, excepting in so far as the distribution of my property is changed by this codicil. First I hereby will, decree and declare that the devise or legacy to my daughter, Mary C. Stafford, In my said will, shall be for her sole and separate use, in dependent of her husband at all times and that at her death the said devise or legacy to her shall go to her chldren, share and share alike. Second. I hereby will, decree and declare that the devise or legacy, In my said' will, to my son, Fred D. Love, shall be for bis sole and separ ate use, Independent of his wife at all times, and that at his death the said devise or legacy shall go to his children, share and share alike. Third. I hereby will, decree and de clare that the devise or legacy In my said will, to my son, Green C. Love, Bhall be for his sole and separate use, independent of his wife, at all times, and that In case of his death with out lawful' Issue, born alive and liv ing at the time of his death then the said devise or legacy to him shall belong and go to the remaining de visees of my said Will in proportion as they hold of the shares or parts of my said will. Lastly. I declare this is a codicil to my will, and that this is the only codicil that I have made and I hereby doclare my said will of date January 5, 1899, to be my last will and testament and also hereby re-affirm the same In every particular, except as modified by this codicil, which codicil ls to be at tached to the said will. ' "Witness my hand and seal this 26th day of February, 1902. (Signed) "Lewis Love." (Seal) The testator died July 3, 1903, and his will and codicil having been pro bated and the estate settled, the trustees set off to plaintiff the real property dscribed In the" complaint. Several . of the devisees executed to plaintiff deeds of any possible Interest they might have in his allotment but others of them having asserted ad verse claims thereto, this suit was I Instituted to determine the Issue and the cause having been tried and the relief prayed for in the complaint granted, most of the defendents ap peal from the resulting decree. Moore, J.: It Is maintained by plaintiff's counsel that the will gave to their client an estate in fee in the premises; that the codicil does not clearly evince Bn Intention to abridge such absolute interest; that the con dition stated therein, associated with the contingency of dying "without lawful issue born alive and living at "Juot Say" HO RUCK'S It than. Original tnd Ganulni MALTED MILK Thi Food-drink for AH More healthful than Tea or Coffee. Agrees with the weakest digestion. Delicious, invigorating and nutritious. Rich millc, malted grain, powder form. A quick lunch prepared in a minute. Take no substitute. AskforHORLIfXS. tw Others are imitations. the time of his death" does not mean the end of plaintiff's life "at any time, but his decease prior to that of the testator, or before a partition of the real property. It Is Insisted by the defendants' counsel, however, that the clause In the codicil, "In case of his death," means plaintiff's dis solution at any time prior or subse quent to that of the testator or be fore or after January 1, 1907 when the land was to be divided, whereby they have possible Interests in the real property Involved and that In re jecting their claims an error was committed. An irreconcilable conflict of Judi cial utterance exists as to the occur rence of a possible uncertain Inci dent such as is referred to in the third clause of the codicil. In speak ing of a similar testamentary direc tion a text writer says: "The gen eral rule is that where the contest is silent, the words referring to the death of the prior legatee, in connec tion with some collateral event, ap ply to the contingency happening as well after as before the death of the testator." 2 Jarman, Wills (6th Ed.) 719. See also Rood, Wills, Sec. 653. Another author, referring to the same subject, observes: "The intention of testator that dying without Issue may mean a death after the death of tes tator may also be inferred from oth er provisions in the will. Thus, a provision that, in case of yie death of the beneficiary without issue, her share shall revert to the estate of testator shows that he contemplates her death without Issue after his own. So a provision that certain lands shall pass to testator's sons after the death of testator's widow, provided that if either dies without Issue his estate shall pass to an other, shows that the death without Issue meant a death after that of testator." Page, Wills, 798. In the excerpt last quoted it will be ob served from the allusion to a testa tor's "estate," which means the property he might leave at 'his death, and from the reference to a testa tor's "widow" which ncessarily sig nifies her expected survivorship the intention is deduced that the contin- !g?ncy 8"eclfied ls 8uPP8ed occur wivi vuo n aiQ iu i a ucaiu. i U tile case at bar it will be remembered that the codicil declares that If plain tiff die without lawful issue him sur viving, "then the said devise or leg acy to him shall belong and go to the remaining devisees of my said will In proportion as they hold of the shares or parts of my said will." As the remaining devisees could not take any estate or Interest in the testator's property until his death, the word "hold" as used in the third clause of the supplemental1 testament manifests an Intention that the de claration of the contingency of plain tiffs death without issue meant his decease" subsequent to that of the testator. If, however, the condition of death wlttiout lawful issue living related to January 1, 1907, when the real property was to have been par titioned. It may be supposed from the testator's advanced age when the will was made that he could not reasona bly have expected to live until that time, and that , at his departure the devlse8s wull have become vested with an estate the lands which Celebrated Lear Pir The Best Heater It will save you m-iey every day yo own It. I ell aid natal the bei Let me give you figures. See Me Afcout an individual lighting plan for your home.! The best thing li the market for uooklng and lighting A. L, Frasier Phone 135. iih State Street (Continued on page five-) r I J'HttlUlII.. TV", ;;iwmu;' . I fa. STATE NEWS. Cottage Grove Is to have a grand sweet pea carnival. The residence of Mrs. Ellen G. Mann, of Independence, burned Monday morning. The building and contents were a total loss. The Jamee Means residence and the Hermlston warehouse at Hermls ton burned Monday; loss J 6000. The desciples of Isaac Walton had a fine day's sport at Oregon City Monday, and many One salmon we're taken on the hooks many 40-pound fish being caught. The Forest Grova Commercial Club has petitioned the city council to extend the city limits. Citizens of Menlo want a railroad, the Clackamas Southern, extended Into the Molalla, and have subscribed a honus of $5000 to get It. J. A. Nice, rural mall carrier on route No. 1 at Springfield, has set the pace by using a motor cycle, and so makes his rounds in less than half the time occupied when he used a horse1. Weston has shipped 98 cars, 2829 tons of produce, In the past seven weeks. Two of the Astoria jail breakers were captured at Clatskanie Friday. Eastern Oregon grain crops begin to feel the need of rain. The new Harriman bridge at Port land will be so constructed that the lower deck can, be lifted without in terfering with the upper. o A Leading California Drnggist. Pasadena, Cal., March 9, 1911. Foley & Co., Gentlemen: We have sold and recommended Foley's Honey and Tar Compound for years. We believe it to be one of the most effi cient expectorants on the market. Containing no opiates or narcotics, it can be given freely to children. Enough of the remedy can be taken to relieve a cold, as it has no nau seating results, and does not inter fere with digestion. Yours very tru ly, C. H. Ward Drug Co,, C. L. Par sons, secretary and treasurer. Get the original Foley's Honey and Tar Compound In the yellow package. Red Cross Pharmacy. The man who has to eat his own words seldom has an appetite tor a repetition. Notice of Intention to Improve Court Street. Notice is hereby given, that the common council of the city of Salem, Oregon, deems it expedient and pro poses to improve Court street, in the city of Salem, Oregon, with concrete pavement, from the east line of Twelfth street to the west line of Eighteenth street, at the expense of the adjacent and abutting property within said limits, and according to the plans and specifications adopted for saidi Improvement and on file In the office of the city recorder, which said plans and specifications are hereby referred to for a more spe cific and detailed description of said Improvements, and are hereby made a part of this notice. This notice ls published for ten (10) days pursuant to the order of the common council, and the date of the first publication thereof ls the 25th day of April, 1911. Remonstrances may ba filed against said Improvement within ten (10) days from the last publication of this notice, and in the manner pro vided by the city charter. CHAS F. ELGIN, 4-25-1 It City Recorder. Salem's most poular res taurant THE WHITE HOUSE We caer to the Dublic who demand a good meal for a small pric. V'm. WcGi'christ & Sons. Gold Dust Flour Made by Ujj DfD.NKT POWER "IVilMW, eiydeey, Orego. Hade let Family Car. tak four grocer for It Braa ad Mborta alyreys bstm4. P. B. WALLACE, Agt. sen I Salem Fence Works x Headquarters for Wotcb Wire Fencing. Hop Wire, Barb Wire, Pocltry Netting, Shla g'es. Malthold Rooting, P. A. t B. and Ready Roofing. Screen t uoors and Adjustable Window I Screens. All at the lowest prices. I CHAS. D. MULLIGAN X IRO Court street Phone 1S4 Hill ! ill ALCOHOL 3 PIR CENT. ANfcgetabklteMraftonlirAs. slmilating the FborfamlHegufar ting Hie Stomachs aniBowls i KW1j"'WSmaiasa lVomotesDigrattonIwruJ- ness and Kesuontalns ntltnr Opiuru.Morpruue rarMaeraL NOT NARCOTIC. jbpHfoUJksaftwinmi JUStam AMItSdts- HimSat hmaqrriiiimr. Aperfect Remedy forConsflpi-i Hon , Sour Stomach.Dlarrtm Wormsfoirvalswnsjevenai- ness andlOSSQFMJE?. Facsimile Signature of NEW YORK. Exact Copy of Wrapper. NO MORE GRAY HAIR It is easier to preserve the color of the bair than to restore it, although it is possible to do both. Our grandmothers understood the secret. They made aud used a "sage tea," and their dark, glossy hair long after middle life was due to this fact. Our mothers have gray hairs be fore they are fiftj, but they are begia ning to appreciate the wisdom of out grandmothers in usinjf "sage tea" for their hair, and are fast following suit The present generation has the advan tage of the past in that it can get a ready to use preparation called Wyeth's Sage and Sulphur. As a scalp tonic and color restorer, this preparation is vastly superior to the ordinary "snge tea" made by our grandmothers, and it can be bought for 50 cents and SI a bottle at almost any first-class drug store, or will be sent direct by the Wyeth Chemical Company, 74 CortlandtSt., New Tort City, upon receipt of price. J. 0. PERRY, Saiera Oregon. What Foley Kidney Pills Will Do for You. Foley Kidney Pills am a true med icine. They are healing, strengthen ing, antiseptic and tonic. Foley Kid ney Pills take hold of your system and help you to rid yourself of your dragging backache, dull headache, nervousness Impaired eyesight, and of all the miserable feelings that re sult from the impaired action of your kidneys and bladder. Remem ber it is Foley Kidney Pills that do this for you. Red Cross Pharmacy. s ure to please wholesome A Iways an 2o Guaranteed unr''12!3 and delightful drink, L ends strength wearied physique, ffects a soothing cure for the nervous ills of life, E M akes life more pleasant and cheers the heavy heart, B rings good fellowship to all who partake in moderation. E 'ilivens the spirit of the down cast and disheartened, E ndows existence with hopes and aspirations R stores man strength ram For Infanta and Child,. The Kind You Have Always Bought Bears the Signature of Yxi einraua aonNnr. Hra Teas errt. JUST SAY WHEX And we will stop cutting off those nice tender chops always to be had at this morket Just the thing3 for breakfast, or even dinner, it you da not care to bother with a roast. Our lamb Is the real thing. No yearlins mutton, but genuine spring lamb, tender, sweet and jlcy. Try It and you'll surely enjoy it. E. c cross &; SON Phone 1880 FAIR GROUND Feed and Seed Store Valley Flour, per sack $1,00, Hard Wheat Flour, $1,25 Best Sugar Cured Govern ment inspected hams, fine goods, per pound, 16c, The very best thin Break fast Sugar Cured Ba con, per pound, 20c, 5 pounds best White Beans ,25c. 6 pounds Whole Grain Japan Rice, 25c, Try a sack of our High ' land Flour at $1,25, 10 pounds Best Nebraska Corn Meal, 25c, Remember the Place. Free Delivery t R. N. MORRIS Phone 1497 t the lovers of a beverage, invigorating, pure to the weak and to fulness of and activity, j' For Over Thirty Years