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(230 P.) PER CURIAM. Upon a rehearing en banc, | delay. This affidavit was strongly contesta majority of the court adhere to the opin- ed by the respondent. ion heretofore filed herein and reported in The fact in the case was that on July 227 P. 2, and the judgment is therefore af. 22 it appeared that nothing had been done firmed.

in some 60 cases that were on the docket, and the court, in order to clear the docket, and at the suggestion of the Chief Justice, made a sweeping order dismissing them for

want of prosecution. Subsequently we disSTATE, Respondent, v. George DINAS, Ap-covered that by chapter 10, General Laws of pellant. (No. 18442.)

Oregon for 1923, which went into effect on (Supreme Court of Washington. Nov. 14, May 1, 1924, the court was prohibited from 1924.)

dismissing cases on its own motion, unless

30 days' notice had been given to the parEn Banc.

ties, so that all of these dismissals were in Appeal from Superior Court, Snohomish

fact void. County; Alston, Judge.

This case coming within this prohibition, C. T. Roscoe, O. Duncan Anderson, and we have no other course than to reinstate M. H. Forde, all of Everett, for appellant. it. But there has been a great deal of de

Joseph H. Smith, of Everett, and A. R. lay already in the matter, and we will now Rutherford, of Morton, for the State.

require a brief to be filed here by appel

lant within 10 days from the date of this PER CURIAM. Upon a rehearing en banc, opinion. Otherwise the case will be suba majority of the court adhere to the opin-ject to dismissal in case respondent should ion heretofore filed herein and reported in so move. 224 P. 597, and the judgment is therefore affirmed.

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(Supreme Court of Colorado. July 23, 1924.) WESTERN GRAIN CO. v. BEAVER LANDSTOCK CO.

1. Exocutors and administrators am 295_With

certain exceptions, executor has year within (Supreme Court of Oregon. Nov. 12, 1924.) which to pay legacy, where will does not fix

time of payment. Appeal and error 807-Appeal dismissed by court on motion without notice must be re- of legacy to testator's minor child, or one in

As general rule, subject to exception in case instated.

loco parentis, and in cases where legacy is of In view of Laws 1923, p. 18, an appeal dis- residue of estate in trust, where will fixes no missed by court on its own motion because time for payment of legacy, executor has one brief was not filed in one year, without 30 days' year within which to settle affairs and within notice to parties, must be reinstated; dismissal which legacy is not payable. being void.

2. Wills Em734(1)-Rule as to interest on leg. In banc.

acy is inapplicable, where legacy is of rents Appeal from Circuit Court, Multnomah and profits. County; Walter H. Evans, Judge.

The rule that pecuniary legacy does not Action by the Western Grain Company substance of gift is the rents and profits which

draw interest is inapplicable, wbere the very against the Beaver Land-Stock Company. the property yields. Judgment for plaintiff, and defendant appeals, and, appeal having been dismissed, 3. Wills Cw486—Testatrix presumed to know

extent of property and approximate amount appellant applies for reinstatement. Appeal

of rents and profits. reinstated.

Testatrix is presumed to know value and J. N. Hart, of Portland, for appellant. extent of property, real and personal, and ap

Winter & Maguire, of Portland, for re-proximate amount of rents and profits it would spondent.

yield.

4. Courts m472(4)-County court alone may MCBRIDE, C. J. On the 22d of July, 1924,

determine when legacy of rents and profits is

payable, though not when computation there. this court, upon its own motion, dismissed

of shall begin, this case, for the reason that one year had

County court having charge of estate may elapsed without any brief being filed by the alone determine when rents and profits, the appellant. Later appellant made an appli- subject of a legacy, are due and payable, though cation to have the case reinstated, filing an time when their computation shall begin is affidavit alleging oral acquiescence by coun proper subject for determination, in action in sel for the respondent as an excuse for his equity to construe will.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. Wills Em 629—Law favors vested, rather | life if she shall survive me; provided, however, than contingent, estates.

my said debts and funeral expenses and the The law favors vested, rather than contin- legacy provided for in paragraph second shall gent, estates.

first be paid.

"Fourth. I hereby give, bequeath and devise 6. Wills 832 --Doubt as to property liable the rest, residue and remainder of my estate

for payment of claims resolved in favor of wheresoever situate, whereof I may die seized legatee favored by testatrix,

or possessed or to which I may in any manner Where legatee of rents and profits had been be entitled or in which I may be interested at treated as a daughter, was an invalid, and was the time of my death to (here follow the unquestionably first in testatrix's thought, names). doubt as to property out of which claims against "Seventh. Power is hereby given to my exestate shall be paid should be resolved in her ecutor bereinafter named to sell and convey favor.

by good and sufficient deed or deeds of convey7. Wills Ow734(6)-Ronts and profits, sub-ance any and all of my real estate for the purject of legacy, computed from time of 'testa pose of paying my just debts, funeral expenses,

cost of administration and said legacy if it shall trix's death,

be found necessary." Rents and profits, the subject of a legacy, begin to accumulate at time of testatrix's death, though amount thereof is ascertained and made The district court construed clause 3 to payable at later date.

mean, as contended by the executor and re8. Wills 832-Under will, claims against es.

maindermen, that the plaintiff, Grace Davis, tate held payable out of corpus, rather than

was and is entitled to the rents, issues, and from rents and profits, the subject of a par- profits arising from the estate, "contingent ticular legacy,

and conditioned" that the debts, funeral Where testatrix gave rents and profits from expenses, and the legacy of $2,000 to the First her estate, both real and personal, for life, to Baptist Church of Greeley, Colo., provided one occupying position of dependent daughter, for in clauses 1 and 2, first be paid from held prior claims against estate were payable the rents, issues, and profits arising from out of corpus of estate, and not out of rents the estate during the period of the first and profits, nor was matter affected by C. L. 88

year of administration thereof so far as suf5262, and 5358.

ficient, any remaining unpaid balance to be Department 1.

then paid from the corpus of the estate, and Error to District Court, Weld County; that plaintiff is entitled to receive the rents, George H. Bradfield, Judge.

issues, and profits arising from the estate

only from and after the expiration of the Action by Grace Davis against H. H. Haro first year of the administration thereof, to baugh, as executor of the last will and testa. wit, February 24, 1924, less a deduction for ment of Mercy S. Thompson, deceased, and

payment made by the executor of an inherothers. From decree for defendants, plain-itance tax in behalf of this plaintiff. The tiff brings error. Reversed in part, and

plaintiff has brought the case here for a recause remanded,

view of this judgment. Joseph C. Ewing and Worth Allen, both of It is conceded by the plaintiff that her Greeley, for plaintiff in error.

rights are subject to the inheritance tax adE. H. Houtchens, of Greeley, for defend- vanced for her by the executor. Her conants in error.

tention is here, as it was below, that the

rents, issues, and profits of the entire esCAMPBELL, J. This is an action in tate belong to her, commencing at the death equity by Grace Davis, a legatee, to obtain of testatrix, subject only to the proper dea construction of the will of Mercy S. Thomp-duction therefrom for enough to pay repairs, son, deceased, particularly of the third insurance, etc., if the corpus of the estate is clause thereof, on which items 1, 2, 4, and sufficient to pay the debts, funeral expenses, 7 are supposed to throw light. These clauses costs of administration, and the legacy of are:

$2,000. She insists that the creditors and “T'irst. I direct that all of my just debts and the other legatee are not concerned, because funeral expenses be paid as soon after my de- all debts that are established against the cease as conveniently may be.

estate and the legacy must first be paid, even "Second. I hereby give, devise and bequeath though she receives nothing; but, as there to the First Baptist Church of Greeley, in Weld is enough to pay all claims, the debts, county, Colorado, the sum of two thousand legacy, etc., should be paid out of the corpus ($2,000.00) dollars, said sum to be used for the of the estate. The question for consideration, benefit of said church as the board of trustees thereof shall deem wise.

as both parties agree, is one between plain“Third. I hereby give, devise and bequeath tiff, the life tenant, and the remaindermen. to Grace Davis, the daughter of Ella Davis, the

The admitted facts are that personal asrents, issues and profits arising from my prop- sets of the testatrix at her death are not erty, both real and personal, of which I may sufficient to pay the debts, costs of adminis. die seized and possessed for and during her / tration, funeral expenses, and the legacy of

Om For other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Iudexes

1

it.

(230 P.) $2,000. The gross income from the improv-, Colo. 278, 138 P. 35, Ann. Cas. 1915C, 1166. ed property of the estate is about $225 per which decides that, where a legacy is a month. The estate is solvent, the real es- designated sum of money, the will not tate being of the value of $25,000 or $30,000. specifying the time of its payment, the comThe executor and the only one of the re- mon-law rule as to the time of payment and maindermen who appeared contend that the the commencement of the enjoyment of the will requires that the debts, costs of admin- | interest or income therefrom is not appliistration, and the legacy be paid out of the cable. We said there that under our statrents and profits, and not out of the corpus ute (sections 5358, 5361, C. L. 1921), such a of the estate, so thåt the corpus or principal legacy is not payable, in any event, until of the estate at the death of the life tenant after the court in charge of the estate makes may pass intact and unimpaired to the re an order directing payment; and, as the maindermen. While some reference or sug- legacy itself cannot be paid until after entry gestion has been made in the briefs of coun- of the order, interest on the legacy, if paysel as to whether the will created or intend- able at all, begins to run only from the date ed to create a trust to be carried out by the of the order. The court went further in executor, it is doubtful if such an issue is that case, and held that under our statute no tendered in the pleadings, and it certainly provision is made for interest on a money was not determined by the district court, and legacy in an amount certain. We do not we therefore express no opinion concerning think the Cobb decision governs the case now

before us. In one sense, interest on a leg[1] In a leading case, Bartlett v. Slater, 53 acy in a sum certain corresponds, if it is Conn. 102, 22 A, 678, 55 Am. Rep. 73, it is not equivalent, to rents and profits on the stated to be the general rule that, where no residue of the estate, real and personal. time of payment of a legacy is fixed by the [2] It should be borne in mind that the will, the executor is allowed one year from question for our determination is not when the testator's death to ascertain and settle the rents and profits are due and payable, his affairs, and meanwhile a legacy is not but when do they begin to run, or from what payable. Upon that ground, interest or in-time are they to be computed? The rents come is payable on the legacy only from that and the profits are what the property itself time. To this general rule are recognized yields. They are the very substance of the exceptions, of which two are relied upon by gift. They represent the usufruct of the esthe plaintiff : One, where the legacy is given tate, and therefore the Cobb rule, that into the testator's minor child, or to one to terest on a legacy is not allowed, does not whom the testator is in loco parentis, and apply here. There the point first determined there is no other provision for its mainte- was that a pecuniary legacy in a fixed sum

The other exception is where the does not draw interest; and, secondly, if it legacy is of the residue of the testator's es- did, the interest would not begin to run untate, or of some aliquot part thereof, in trust til after the county court in charge entered to pay the interest or turn over the income an order directing payment of the legacy, to the life tenant, remainder over at his The question here involved was not an issue death. Other cases of the same import are there; it is, not whether interest is provided Cook v. Lanning, 40 N. J. Eq. 369, 372, 3 A. for rents and profits of a residuary estate, 132; Simonsen v. Hutchinson, 231 Ill. 508, but when do the rents and profits themselves 83 N. E. 183; Lacey v. Collins, 134 Iowa, begin? The parties here are agreed that the 583, 112 N. W. 101; Greene v. Rathbun, 32 plaintiff is entitled to rents and profits. The R. I. 145, 78 A. 528; Lewis v. Darling, 16 Cobb Case throws no light upon the time How. (U. S.) 1, 14 L. Ed. 819; Lamb v. when they accrue. With that question prior Lamb, 11 Pick. (Mass.) 371; Lawrence v. claimants are not concerned, for as to them Security Co., 56 Conn. 423, 15 A, 406, 1 L. plaintiff gets nothing until after they are R. A. 342; Bancroft v. Security Co., 74 Conn. satisfied; so that they get their money, they 218, 50 A. 735; Sargent v. Sargent, 103 Mass. do not care from what source it comes, but 297, 299; Lovering v. Minot, 9 Cush. (Mass.) as between the life tenant and the remain151; Van Blarcom v. Dager, 31 N. J. Eq. dermen it is an important question. 783; Metcalfe v. Hutchinson, L. R. 1 Ch. [3] The testatrix is presumed to know the Div. 591; Schouler on Wills (5th Ed.) p. value and extent of her property; how much 758, par. 579.

was real estate, how much was personal, We do not think any of the authorities She also knew approximately the amount of relied upon and cited by the executor are rents and profits that it would yield. If it in point. Indeed, the opinions in some of was her desire to devote rents and profits to these cases recognize as exceptions to the the payment of debts and a prior legacy, etc., general rule the two which the plaintiff and not immediately to the maintenance of here invokes as sustaining ber contention. the plaintiff, who was the first object of her

To avoid misapprehension, not because the solicitude and care, and whose nixcessities instant case comes within it, it is appropriate began the moment of her benefactor's death, to refer to Cobb v. Stratton's Estate, 56 it is strange, indeed, that she did not ex

nance.

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pressly declare. * Such an intention, mented in value to the extent of the total which is inconsistent with what she express amount of such payment. If prior claims ly said in the will, is also negatived by the must come out of the corpus, then the plainseventh clause, in which is conferred on the tiff will receive out of rents and profits a executor, if found necessary, the power to sum equal to the amount of the prior claims, sell any or all of her real estate for the pur- which otherwise would finally go to the re pose of paying the prior claims and demands maindermen, if payment of prior claims is and the legacy. The rents and profits, and out of rents and profits. That, if the prior all of them, the testatrix knew would be claims are paid out of the proceeds of the needed to care for her daughter. And it is sale of the corpus of the estate or some part not a reasonable implication that she in- thereof the capital fund, on which plaintiff's tended to give to her. executor the power to future rents and profits are to come, will withhold from the plaintiff, who was in such thereby be diminished to the extent of its sore need, the rents and profits until after value, and that, if her rents and profits are prior claims, .a charge on her entire estate, used to liquidate them, the capital fund rewere satisfied out of them, when she ex- mains intact, is no justification, against her pressly empowered the executor to satisfy, protést, for so applying them. As between if necessary, prior claims from the proceeds the life tenant and the remaindermen, they of the sale of her real estate.

are to be paid out of such portion of her [4] The parties being in accord that the residuary estate as she chooses. All of it is rents and profits are a charge upon the es- hers for life; her devise and legacy of rents tate, and are to be paid before the affairs of and profits therefrom is in law equivalent to the estate are settled, we do not decide, and, a devise or legacy of the real and personal under the decision in the Cobb Case, only estate itself. The remaindermen are not the county court that has charge of the es vested with the option; it is her option to tate may determine, when the rents and prof-designate what portion of her estate shall its are due and payable. The beginning of first be applied to the prior claims. If ultithe time for their computation, however, is mately her present desire, when accomplisha proper subject for determination in this ac-ed, results in her loss and to the gain of the tion. The cases above cited abundantly sup- remaindermen, she may not complain, and, of port the plaintiff's contention that the rents, course, they would not. issues, and profits begin with the death of Obviously, and so the district court held, it the testatrix.

was the intention of the testatrix to provide [5] The law favors a vested, rather than for life adequate maintenance for the plaina contingent, estate. As between the plaintiff, whom she considered as her daughter, tiff legatee and the church, which has a spe and who, as the testatrix knew, was, and cific pecuniary legacy, and as to the debts, would probably continue to be, a hopeless infuneral expenses, and costs of administra- valid. She had no resources of her own and tion provided for in the first and second was unable to earn a living, and, considering clauses, and which by the third clause are her physical condition, she was and is as indirected to be first paid, the plaintiff's rights capable to care for or support herself as it in the estate under the third clause are sub- she were a minor child. For one so incaject and inferior. If all of the estate would pacitated the rents and profits of the entire be consumed in paying them, plaintiffs, of residuum of the estate would be necessary. course, would get nothing, but though the The plaintiff's mother, from her early in. personal property of the estate, primarily fancy until her death, and the plaintiff herthe fund for paying legacies, is insufficient, self, from the time of her own. birth, lived the realty is more than adequate therefor. continuously with the testatrix and her husThe real question then is: May the executor band and until the husband's death, and pay the prior claims, in whole or in part, thereafter the plaintiff lived with the testaout of the rents and profits of the residue of trix until the latter's death. The plaintiff's the estate which are given to the plaintiff mother was always considered by her bene for life, or is he restricted to the corpus or factors as their own daughter and the plainprincipal of the residuum estate in discharg- tiff as their granddaughter, though neither ing them? If there be only enough property was legally adopted. Mother and daughter to discharge the prior claims, there would be lived in the Thompson family as members no residuum of the estate for the plaintiff, the thereof, were supported and maintained as life tenant, but there is, or will be in due such by the Thompsons, and treated as if course of time, much more than enough as they were legally adopted, or had been their sets to pay prior claims out of the rents and own children. profits or out of th corpus. If out of the [6] In view of these relations, as between rents and profits, exclusively or in part, the plaintiff and the remaindermen, plaintiff was plaintiff's income, until full payment of the unquestionably first in the thought of the tesprior claims is made, will be nothing, and tatrix. If there is any doubt or uncertainty the corpus or principal of the estate, at the about the source or the property out of death of the life tenant, which will then which should come the money to pay prior devolve upon the remaindermen, will be aug- claims, it should be resolved in her favor.

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(230 P.) As between a life tenant and a remainder-tatrix knew was wholly dependent from the man, the former is first in order of taking, moment of her death upon the bounty pro first in order in receiving the bounty of a vided in her will, should enjoy the income of testator, and ought first to receive the at the residuary estate in its entirety from the tention of the court, and in doubtful cases a moment of her death. first taker is preferred. Metcalfe v. Hutch [7] Section 5358, C. L. 1921, is also invokinson, supra: 40 Cyc. pp. 1413, 1415, 1417; ed by the executor and the remaindermen. 28 R. C. L. pp. 270, 272. The testatrix knew This section authorizes the county court to that plaintiff was dependent for support upon direct the executor, in certain circumstances, her bounty, which was provided in the will, to pay all legacies, and no such order has and that payment of prior claims must be been made by the county court in this esmade out of the residue of property included tate. Absence of such an order might have in the third clause, either of the principal been urged below as showing the suit to be or the income. If the executor has the pow- premature, though we do not say that such er to apply, and may only apply, the rents would be the effect. We must presume, howand profits for the first year to the prior ever, that the executor will not pay any claims, plaintiff's source of maintenance legacy or demand against the estate until the meanwhile is cut off, and the remaindermen's proper order is made by the county court, bounty is increased. If payment is made and that the county court in due time will from a sale or mortgage of the principal or make the order. We also may rightly pre some part thereof, plaintiff will or should en sume that, if it becomes necessary, the counjoy the use of the rents and profits accru- ty court might and will require, if the finaning from and after the death of the testa- cial condition of the estate justifies it, that trix. We see no reason why the remainder- the executor from time to time shall make men should be preferred and get an advan- advances out of available funds in his hands tage at the expense of the life tenant, which to the life tenant for her maintenance, until testatrix never intended. It may be said, such time as it may legally ascertain the and we have not made the calculation to amount of the entire indebtedness of the esdetermine, that, since in any event these tate, which cannot in any event be until after prior, claims are to be satisfied out of the the expiration of one year from the grantresiduum of the estate, either from the income ing of letters of administration. The rule of the same or of the corpus itself, it is im- which we say is applicable here is not at all material to the plaintiff whether the execu- inconsistent with the decision in the Cobb tor applies the rents and profits thereto or Case, that in no event is a legacy payable discharges them with the proceeds of a sale until after the entry of an order by the court or mortgage of the principal. The answer is having charge of the estate, directing paythat the plaintiff needs, from the very mo- ment. The time for the beginning of the ment of the death of the testatrix, the rents rents and profits should begin with the death and profits for her very existence, and is of the testatrix, even though the amount given the right by the will so to apply them. thereof is ascertained and made payable at She was first in the eye of the testatrix; a later date in the course of administration. the preference is hers. We think the com [8] We conclude therefore that, since the mon-law rule justifies our conclusion,

plaintiff is, for the purpose of this case, to Has section 5262, C. L. 1921, changed it? be considered as the minor daughter of the This section declares that the executor is enti- testatrix, for whose maintenance this legacy tled to and shall receive the rents, issues, is the only provision, and as the legacy or and profits arising out of the real and per- devise of the residuary estate is for her life, sonal property of the estate, and when col with the remainder, over, and the will itself lected the same shall be assets for the pay- has not fixed the time when the rents, isment of debts, legacies, and costs of admin- sues, and profits are to begin, the right of the istration, and shall be administered as is life tenant thereto begins from the death of money arising from the sale of personal prop- the testatrix, though the amount thereof is erty. The section is cited by the executor to be computed later, and the time of pay. as authority for applying the rents, issues, ment is to be fixed by the county court. As and protfis to the payment of the prior the principal of the estate is abundantly sufclaims. We do not think it is. The statute ficient to pay the prior claims, the rents and says such application may be made, "unless profits shall not thereto be applied, in whole otherwise provided by will.” Mrs. Thomp or in part. They must be satisfied by sale son's will has "otherwise expressly provid- or mortgage of the principal or corpus. The ed” that the rents, issues, and profits shall decree of the district court, which in some go to the plaintiff, and her right thereto, respects harmonizes with our conclusion, which is the usufruct of the devised estate, may be by it either modified so as fully to begins with the death of the testatrix. This coincide and comply therewith, or, at its is so under the common-law rule when the option, set aside in its entirety, and a new will has not otherwise fixed the time, and one entered, which must be in accordance the entire scheme of this will contemplates with the views expressed in this opinion. that the plaintiff life tenant, whom the tes. The district court divided the costs equally

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