Connertin v. Concannon

BROWN, J. Section 10119, Or. L., provides: “If any person by last will devise any real estate to any person for the term of such person’s life, and *390 after Ms death, to his or her children or heirs, or right heirs in fee, such devise shall vest an estate for life only in such devisee, and remainder in fee simple in such children.” By virtue of the above provision and the terms of the will in question, before proceeding- further we are constrained to hold that Thomas David Connertin received a life estate only in the property involved herein. See, also, Estate of Reinbrecht, 116 Or. 184 (240 Pac. 223), wherein this court held, in an opinion by Mr. Justice Burnett, that where the testator devises all of his property to his wife for her natural life, and on her death one part to go to his children and the other to the wife’s heirs, that a life estate only was vested in the wife, notwithstanding- the power of the wife to sell and convert the property into personalty. To similar effect are Gildersleeve v. Lee, 100 Or. 578 (198 Pac. 246, 36 A. L. R. 1166), Soules v. Silver, 118 Or. 96 (245 Pac. 1069). Also, see note, 36 A. L. R. 1177; 25 Michigan Law Review, p. 215. Now, as to the devise of testatrix to her son for his natural life, with “remainder to his heirs,” 2 Under-hill on the Law of Wills, page 883, says: “The first question, therefore, in the case of a devise to A for life, with remainder to his heirs or to the heirs of his body, is, ‘Whom did the testator intend to describe by‘the word “heirs”?’ ” The terms “heirs,” “issue,” “descendants,” “devisees” and “legatees” are sometimes used in wills in a sense different from their ordinary signification. Moreover, their meaning may be extended or restricted so as to comport with the testator’s intent: Gildersleeve v. Lee, supra, and cases there cited; Stubbs v. Abel, 114 Or. 610 (233 Pac. 852), and au *391 thorities there noted; Page on Wills, 611, 612; 3 Woerner, American Law of Administration, pp. 1411, 1412. As a general thing, the word “issue,” as used in wills, means lineal descendants indefinitely: 2 Jarman on Wills, Bigelow’s Fifth Edition, p. 440. Again, in Gannon v. Peterson, 193 Ill. 379 (62 N. E. 210, 5 L. R. A. 701), the court held that if it is apparent from a reading of the will that the testator used the words “heirs,” “issue” and “children” indis-' criminately, giving them their common meaning, the court is warranted in reading them interchangeably, so as to carry out the testator’s intention as disclosed by the entire instrument. It appears, therefore, that there is no inflexible rule for determining the meaning of the words “heirs,” “issue” or “estate,” but that, upon the other hand, the will should be so construed as to give effect to the manifest intention of the testator. At common law, an heir is one who is born or begotten in lawful wedlock, and upon whom the law casts an estate in the lands, tenements or hereditaments immediately upon the death of his ancestor. Again, whoever succeeds to property of an intestate has been defined to be an heir: Anderson’s Law Dictionary; Bouvier’s Law Dictionary; Words & Phrases. In many cases, it has been held that the word “heirs” does not include the widow or widower, and again there are decisions holding the widow to be included in the term “heirs,” on the ground that she is a statutory heir. For a list of cases cited in support of the respective holdings, see note, L. R. A. 1918A, p. 1108, on the subject, “Does the Widow Come Within the Term ‘Heirs’?” “A widow is an heir of her deceased husband only in a special and limited sense, and not in a general sense in which that term is usually used and under *392 stood.” Reynolds v. Stockton, 144 U. S. 254, 270 (35 L. Ed. 464, 11 Sup. Ct. Rep. 773). However, an “heir,” or “heir at law,” is simply the person designated by law to succeed to an estate. It is within the competency of the legislature to make a husband or wife an heir of the other. The testatrix used the word “estate.” This is a word of several distinct meanings. It may refer to the “quantity of interest which a person has, from absolute ownership down to naked possession,” or, “the thing itself of which one is owner; any species of property, real or personal.” Anderson’s Law Dictionary. To the same effect, see 21 C. J. 912-915. At page 914 thereof, we read, concerning the meaning of the term “estate”: “In a will, the meaning of the term ‘estate’ must often be ascertained from the connection in which it is used; and it may refer either to the thing devised or the quantity of interest, or both, and be restricted to realty only, or to personalty, as where the word is enumerated with others * * , or include both. Standing alone without qualification or restriction, it will include all kinds of property, real, personal, and mixed. ’ ’ In our probate Code, the term “estate” is used as meaning the property of the deceased. Throughout the Code reference is made to the “property of the estate”; and, plainly, that was a sense in which the testatrix used the term “estate” when she directed that if either of her children should die without issue, “the said estate of the child so dying shall descend as a life estate to the survivor of my said children, the remainder to the heirs of such survivor.” From this clause of the will, it appears that she used the term “heirs” in the two preceding *393 clauses as meaning issue, or the equivalent of lineal descendants. We recognize the fact, however, that the term “heirs,” as used in the paragraph devising real property to her son, Thomas David, is capable of meaning wife or child: Estate of Reinbrecht, 116 Or. 184 (240 Pac. 223). This being true, it becomes necessary to determine in what sense the testatrix used that term; and, to reach such determination, we must take the will by its four corners and construe it as a whole. After a careful study of the will in its entirety, we are satisfied that the expressed intent of the testatrix in this case is carried out by the decision of the court below. Hence it is our duty to affirm the judgment. It is so ordered. Affirmed.