Tyler v. Bier

BEAN, J. Sophia Bier and Rosa Keil appeal from that portion of the decree impressing a lien upon their share of the real estate for the amount of the mortgage and interest by reason of Mrs. Forstner, now deceased, having paid the same; and contend: (1) That according to the terms of the will Mrs. Forstner as the life tenant should have paid all the debts against the estate of the testator, Benjamin Forstner, before she would have been entitled to the real property; and (2) that in any event they should pay only one half of the principal of the mortgage debt and that the interest should be deemed to have been liquidated from the rents and profits of the premises. Plaintiffs concede that their share of the real property should bear one half of the burden of the principal debt, but submit that the record does not authorize a finding that there was an income from the property with which the life tenant could pay the interest on the mortgage. 1. After hearing all the evidence, a record of which it is stated by counsel was not preserved so as to enable defendants to present the same to this Court, the trial court found as to the first proposition submitted by defendants that at the time of the death of Benjamin Forstner there was an encumbrance against the real premises in the way of a mortgage in favor of Mary Payton in the amount of $3,500, and subsequent to his [434] death, to wit, on October 14, 1899, plaintiff herein, through her own efforts and with her own funds released, paid and discharged the said mortgage. As the record comes to us it must be assumed that there was evidence supporting the finding, and that the mortgage debt was not liquidated with other funds belonging to the estate of Benjamin Forstner, deceased, as claimed by plaintiffs. 2-5. It is an undisputed rule that in the construction of a will the purpose is to discover the intention of the testator: Kaser v. Kaser, 68 Or. 153 (137 Pac. 187); Roelfs’ Cousins v. White, 75 Or. 549, 551 (147 Pac. 753). While the will in question is couched in very general terms it clearly appears therefrom that the testator desired that his widow should hold the property, both real and personal, during her life and enjoy the use thereof for her maintenance. Any question in regard to her power to alienate any part thereof is eliminated by her death. It does not appear that Mr. Forstner willed that his wife should be required to pay any encumbrance on the real estate from her separate estate or by her own efforts. If she did so from the other funds or property of the estate, under the terms of the will ordinarily it would only chang’e the form of the property and would not affect the reversioners or remaindermen. We therefore hold that according to the will it was not compulsory for Mrs. Forstner to satisfy the mortgage. Being a life tenant, she was under no obligation to pay off the principal of the encumbrance even to prevent a foreclosure sale. When she did so with her own money she was entitled to call upon the remaindermen or reversioners for contribution, and to a lien on the property for the amount of the principal so paid: 16 Cyc. 635, 636; Moore v. Simonson, 27 Or. 117, 127 (39 Pac. 1105); Tindall v. Peterson, 71 [435] Neb. 160 (98 N. W. 688, 99 N. W. 659, 8 Ann. Cas. 721). There are exceptions to such a rule, but they are not applicable to the present case. It is the duty of such a life tenant, however, to pay the interest on the encumbrance, at least to the extent of the income or rental value of the property, and of the remainderman to pay the principal: 16 Cyc. 634 (12); Moore v. Simonson, 27 Or. 117 (39 Pac. 1105); Damm v. Damm, 109 Mich. 619 (67 N. W. 984, 63 Am. St. Rep. 601). It appears that the real property is situate in the business portion of the Capital City and the greater part of it was leased by Mrs. Porstner who received the rents. This is not controverted in plaintiff’s briefs. The payment of the interest would tend to decrease the amount of property to be left to the remaindermen under the terms of the will. In equity the interest on the principal of the mortgage debt, during the incumbency of the premises by the life tenant,'Mrs. Porstner, should not now be paid by either set of remaindermen. The decree of the trial court will therefore be modified so that the share of defendants, Sophia Bier and Rosa Keil, will be subjected to a lien thereon for one half of the principal of the mortgage debt, or $1,750, with interest thereon at the rate of six per cent per annum from November 11, 1917, the date of Mrs. Porstner’s death. In other respects the decree is affirmed. The plaintiffs and defendants will be required to pay their own costs it being for the mutual benefit of all the parties to this «suit that the questions involved be determined. Modified. McBride, C. J., Moore and McCamant, JJ., concur.