Savage v. Savage , 51 Or. 167 ( 1908 )

Mr. Chief Justice Bean

delivered the opinion.

1. The position of the defendants concurred in by the court below is, that the purpose of this suit is to obtain a judicial construction of a will which, under the rule announced in Edgar v. Edgar, 26 Or. 65 (37 Pac. 73), cannot be maintained. The complaint contains many unnecessary averments, but manifestly embodies all the essential allegations required in a suit to determine an adverse claim to real estate under Section 516, B. & C. Comp. It shows that plaintiff has a substantial interest in, and is in possession of certain described real property, and that defendant claims an estate or interest therein adverse to her, and this is all that is required. It is not necessary.in such a suit for plaintiff to set out the source of his title, or the nature of the adverse claim. An allegation in ordinary and concise terms of the ultimate fact that plaintiff is the owner of some substantial interest, naming it, in real estate that he is in possession of, or that it is not in possession of another, is sufficient without setting' out the nature of the evidence or the probative matters which go to establish such ultimate fact; and an averment that defendant claims an adverse interest therein is sufficient, without defining it, to put him to a disclaimer or to allegation and proof of the estate or interest which he claims: Zumwalt v. Madden, 23 Or. 185 (31 Pac. 400); Ladd v. Mills, 44 Or. 224 (75 Pac. 141); Holmes v. Wolfard, 47 Or. 93 (81 Pac. 819); Lovelady v. Burgess, 32 Or. 418 (52 Pac. 25); Ely v. New Mexico R. Co. 129 U. S. 291 (9 Sup. Ct. 293: 32 L. Ed. 688); Castro v. Barry, 79 Cal. 443 (21 Pac. 946).

2. The purpose of the statute is to provide an easy and simple method, by which one having a substantial interest in real estate, but who cannot maintain an action at law against another claiming an interest adverse to him, may require such claimant to appear in a court of equity, and set up and have his claim adjudicated. In such a suit the court will construe either a deed or a will, if necessary to an adjudication of the question involved, as an incident to its jurisdiction, to determine the adverse claim: Simmons v. Hendricks, 43 N. C. 84 (55 Am. Dec. 439). The complaint, therefore, clearly states facts sufficient to constitute a suit under the statute, and this is probably the only question the court should consider at this time.

3. The better practice in this class of cases is for a court to decline to determine the validity of defendant’s claim, even if plaintiff has assumed to set it out in the complaint, until he has disclosed it by answer. Its nature is necessarily known to him, but may not be to the plaintiff, and therefore the court, in attempting to adjudicate it before answer, may be deciding a mere moot question.

4. But since this cause was submitted on the theory that defendant’s claim is based on the will, we have examined the question as to the power of the plaintiff to sell and convey in fee, the property devised to her, and have concluded that she can do so. By the terms of the will the testator devised and bequeathed to her “all my real and personal property wheresover and whatsoever” for certain uses and purposes, with power to sell and dispose of the same whenever she deemed it advantageous. There are no words limiting the estate devised, and the rule is that, where there is a devise of real property for life in express terms, with power of disposal, the power does not enlarge the estate into a fee, and the devisee can convey only such estate as he received, unless there are words clearly indicating that a larger power was intended: Winchester v. Hoover, 42 Or. 310 (70 Pac. 1035). But where there is a general devise without any specifications as to the estate devised, and an absolute power of disposal, the donee may convey a title in fee, although he may be required to account for the proceeds as a trustee: Roberts v. Lewis, 153 U. S. 367 (14 Sup. Ct. 945: 38 L. Ed. 747); Little v. Giles, 25 Neb. 313 (41 N. W. 186); Dodge v. Moore, 100 Mass. 335; McMillen v. Deering, 139 Ind. 70 (38 N. W. 398); Hemhauser v. Decker, 38 N. J. Eq. 426, and note; Norcum v. D’Oench & Ringling, 17 Mo. 98; Kaufman v. Breckinridge, 117 Ill. 305 (7 N. E. 666); Bishop v. Remple, 11 Ohio St. 277.

It is unnecessary to express an opinion at this time upon the question whether the plaintiff took an absolute fee under the will, or took the title in trust for certain purposes; for, if she took a less estate than an absolute fee, with the power of conveying in fee, the result, so far as this suit is concerned, would be the same as if she took the fee in herself. In either event her conveyance would pass title, and that is the only question which is important or can properly be considered in this case, so far as a construction of the will is concerned.

The decree of the court below is reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion.

Reversed.