davidaulloa/AmericanStories huggingface dataset:
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02
SPREME COURT DECISIONS.
Continued from Page two.)

thereafter they could hold within
the meaning of that word,
A devise of real property is deemed
to be a gift of all the testator's es-
tate in the premises subject to his
distribution, unless it clearly ap-
pears from 'the will that he intended
to devise less estate or interest" !"
L. 0. L. Sec 7344 "All courts and
others concerned in the execution of
last wills shall have due regard to
the directions of the will, and the
true interests Cntent) and meaning
of the testator in all matters brought
before them" Id Sec. 7347. In the
examination of a manuscript, in or
der to ascertain the intention of a
party, courts will take into consider
alton the ability of the person who
drew the instrument correctly to eX-
press the terms, objects and pur-
poses desired. Thus in Saunders ".
Saunders Admir-, 20 Ala. no, 716, in
constituting a marriage contract it
was held that the intention of the
parties was to be gathered from an
examination Of the entire agreement,
though the conclusion reached was
contrary to the express provision Of
a particular clause, the court saying:
This rule we apply in the present
case with the less hesitation, for the
reason that the settlement bears
upon it's face the most palpable
marks that it was drawn by a per-
son who was not only entirely ignor-
ant of legal forms but incapable OF
expressing his meaning with clear
ness and precision"
In the case at bar the testimony
shows that the codicil was written by
a person evidently unable to express
in proper legal form the testator's
directions. If the third clause Of the
supplemental testament transferred
an estate in fee to plaintiff his wife
has an inchoate right of dover in the
premises, which interest, if she sur
wives him, will become a life estate
of an undivided one-half unless she
is lawfully barred thereof. L. o. L.
Sec. 1886. If the absolute estate to
her husband were not cut down by
the codicil she could cucumber the
land by incurring expenses for the
support of the family, I'D. Sec. 7O39)
thereby endangering all the real
property, except the homestead, to
sale on execution. Id. Sec. 221. The
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02
Notice Of Intention to ImpOrve "D''
Street.

Notice is hereby given that the
common council of the city of Salem,
Oregon, deems it expedient and pro-
poses to improve %" street in the
City of Salem, Oregon, with Ell Oso
pavement on bituminous base,
from the west line of Twentieth
street westerly to 112h feet west of
the west line of Winter street, at the
expense of the adjacent and abut-
ting property within said limits, and
according to the plans and specifi-
ations adopted for said improvement
and on file at the Office of the city
recorder, which said plans and spec
ifications are hereby referred to for
more specific and detailed descrip-
tion OF said improvement, and are
hereby made part of this notice.
This notice is published for ten
(10) days pursuant to the order Of
the common council, and the date of
the first publication thereof is the
25th day of April, 1911.
Remonstrances may be filed
against said improvement within ten
qO) days from the last publication
of this notice and in the manner pro-
videdeby the city charter
CHAS. F. ELGIN,
4-25-11t City Recorder.
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02

Deitrick, Watts & S. 2s4, 2S7. That
the testator did not intend to ex-
clude plaintiffs grandchildren from
sharing his. estate in case of the
death of Green C. Love, If they or
either survive him. appears to be
manifest from clause Of the last
will, to-wit: 1T was always my
purpose to distribute my property
equally between my several children
and to the heirs of those of my chill
dren who had died, leaving children
or grandchildren" Though neither
of these great-grandchildren is
named in the will or codicil, nor is
any provision expressly made for
them, We think it is fairly disclosed
from the context of the codicil that
If either were living when plaintiff
died such survivor or survivors
would take the real property or a
part thereof in fee by implication.
The term isue, as used in the codi-
Gil, includes, among others, grand
children az A. G E. Enc. L. cd Ed
544 and since plaintiffs lawful is
sue of that degree were in esse when
the supplemental testament was
made, and as he took by the codicil
only a life estate in the land, they,
as remaindermen, became vested
with a fee conditional at the death
of the testator subject to such life
estate and to the possibility of their
interest being diminished by the
birth of other issue, and to the re-
mainder over by way of executory
devise to the other devisees, in case
these grandchildren or any other is
sue of plaintiff do not survive him.
80 A. & E. Enc. L. I'D Ed 7O1;
Still V. Spear, Grants Cas-. 306;
Sturges v. Cargill, 1 Sanf. Ch. 31S.
This conclusion, in our opinion, up
holds the testator's intention as
gathered from the will and codicil
when viewed in their entireties
where necessary, and considering the
supplemental testament as last
will which revokes the prior will in
sofar as it conflicts Herewith. II
Lewis Love had designed that the
remaining devisees should take as
remaindermen, on the termination of
plaintiffs life estate, and that the
lawful issue of the latter who should
be living at his death were to be ex-
cluded there would have been no
need to refer to such contingency,
but the allusion to plaintiffs decease
under the condition indicated shows
a purpose that such issue, If surviv-
ing, should take the remainder,
though not so expressly stated, and
if plaintiff should die without lawful
living issue, the remaining devisees
are to take the lands in fee as an
executory devise.
1t follows from these considera-
tions that the decree is reversed and
the suit dismissed.
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02

hold of the shares or parts of my
said will"
The testimony shows that when the
codicil was made plaintiff was 50
years old and his wife 46 and for the
time of their joint lives, or during his
life if he should survive her and re-
marry, the law will presume the pos
sibility of issue, Hamilton v. Sid
we'll and note on the rule in Shelly's
Case, 29 L. R. A. IN. s. 961, 1921.
In view of such presumption it is un-
reasonable to suppose that the tes-
tator desired to exclude this sons
, lawful issue from taking the share
to which each would be entitled if
living at the time of plaintiffs death.
AS such issue would take a proper
tion of the share set off to Green c.
Love, based on the ratio determined
from the number of his children, his
grandchildren would take the part of
their mother by representation and
not full share in case other lawful
issue survived plaintiffs death.
These possible conditions and the
manifest purpose of the testator to
prevent plaintiffs wife from acquir-
ing an estate in fee or dover right
to any part of the land evidently in
duced the difference noticeable in the
codicil respecting the devisees to
Mary C. Stafford, Fred D. Love and
Green C, Love, each of whom in our
opinion took only a life estate.
1t will be remembered that the
will directed the executors to sell
the personal property and settle the
estate, after which, as trustees, they
were empowered to lease the real
property, collect rents, make neces-
sary repairs and pay taxes, but as
they were required to protect and
keep the real estate intact for the
devisees, they were impliedly pro-
hibited from selling any part of the
premises. We conclude, therefore,
that they never took the legal title
to, but held the possession of the
land and that their duties we're fully
discharged when they had divided
/ the premises into six parts of equal
value and set off the several shares
to the devisees entitled thereto who
at the death of the testator and
prior to such apportionment took as
tenants in common, vested estate In
fee in the real property. The rule
of construction prevailing in most
states of the Union is that devise
of a fee, coupled with a condition
that If the devisee die without issue
the estate is to go to others, means
dying without issue in the lifetime
of the testator, unless different in
tention is manifest from the context
OF the will. "The presumption that
the contingency of dying without
issue" says the author of the exhaus-
tive note to the case of Lumpkin V
Lumpkin, 25 L. R. A. IN. 81 1868
1864, "is to be restricted to testator'f
lifetime being fundamentally limited
to cases where an absolute gift IL
made to the first taker, in express
terms or by implication, is not ap
plicable where the gift is clearly O
less interest"
No attempt will be made to recon
cile the conflicting decisions or t.
determine the weight of authority
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02

UPON tue queSIlOn OF ueatn or de-
visee in connection with some col
lateral fact, supposed to happen
either before or after the death of a
testator, but the decision of this
cause will be placed on what is be-
lieved to be the purpose of Lewis
Love respecting the objects and the
extent of his bounty. The intention
of testator is the guide in constru-
ing the terms of his last testament
and if his design can reasonably be
ascertained, it controls the disposi-
ton of his property. Shadden v.
Hembree, II Or. IA, 20; Jasper V.
Jasper II Or 500, 593; Portland
Trust Co. V. Beatie, 80 Or. 3O5. 300.
If, after giving a fee to plaintiff,
the will had also included the third
clause of the codicil, 1t is possible
that a presumption might be in
voked that the condition of dying
without living issue would be con-
strued to mean the death of plaintiff
before that of the testator, so that
on the happening of the latter event
the absolute estate would have be-
come vested in Green G. Love, of
which he could not have been de-
prived on account of any failure of
issue him surviving. But however
this may be, the legal principle thus
adverted to can, in our opinion, have
no application to the case at bar, fdC
insofar as the codicil conflicts with
the will, it is the last expression of
a testamentary disposition of prop
erty, revoking the will to the extent
of the disagreement in their provi.
sions and preventing a construction
of their terms with reference to each
other. Examining the will and codi-
Gil as each dovetails into and thus
necessarily become a part of the 9th
er, and regarding plaintiff, who is
the first taker, to have been the fav-
orite object of the testator's bounty,
and as such entitled to the benefit of
every implication in his favor, but
considering the conflicting provision
of the cocdil as revoking the will
pro tanto, we nevertheless believe
that the term use" as employed in
the supplemental testament and as
modified by its other provisions,
clearly evinces an intent on the part
of Lewis Love to give to plaintiff a
life estate only, since that word,
when applied under similar condi-
tions, generally means the transfer Of
an interest in land of that duration.
s Words & Phrases, 1928; Brunson V.
Martin, 152 Ind. Ill; Spooner v.
Phillips, 16 L. r. A. 461; In re Met
calfe's Estate, 81 N. Y. Supp. S79.
The deduction that plaintiff took only
a life estate is strengthened by the
provision Of the codicil which treats
the premises to be partitloned to him
as remaining undiminished at his
death, thereby implicitly denying to
him the right of alienation. The de-
termination thus reached leaves for
consideration the inquiry of who were
intended as the devisees in fee OF the
land, and what is the order Of their
respective rights.
1t is a we'll recognized legal prin-
ciple that an heir at law can only
be disinherited by express devise OF
necessary implication. Bender v
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02
Baked at Cold Steel.

81 wouldn't let a doctor cut my
foot Off said H. d. Ely, Bantam
Ohio, although horrible ulcer has
been the plague of my life for four
years Instead l used Bucklen's Arni-
ca Salve, and my foot was soon COM
pletely cured" Heals burns, boils
sores, bruises, Eczema Pimples
corns, surest pile cure, 25c at ]. G.
PerTys.
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02

plaintiff could also convey the prem
ises to her in fee. ID Sec. 1886. The
possible consequences suggested
could be partially thrwarted by con-
STRUNG the gift to plaintiff "for his
sole and separate use, Independent of
his wife at all times" as manifesting
an intention on the. part of the testa-
tor to bestow life estate only. AS
all property of the judgment debtor,
except the homestead, is liable to
execution, q. o. L. Sec. 227) it fol-
lows that if plaintiff acquired a life
estate in the real property, such in
terest might be subjected to all the
incidents indicated, except dover, so
that, in all other particulars, the at
tempt to restrict the rights of plain
tiff's wife was almost unavailing.
! The codicil makes no arrangement
for plaintiffs lawful issue in case
they survive him, but if he took a
/ fee in the land no provision to that
effect was essential. If he were
given a life estate, however and his
grandchildrn took fee conditional
with a remainder over as an execu-
tory devise in case of their death
prior to his, and such was the testa-
tors intention, his purpose might in
the greater part be effectuated
The limitation over is not indefinite
but takes effect at plaintiffs death
without lawful issue him surviving.
II A. & E. Enc. L. I'D Ed. 564 If he
took fee in the lands such interest
would formerly be reduced by the
limitation over, upon definite fail
ure of issue, to an estate in fee tail.
Hill V. Hill, 10 Am. Rep. $40. 1t has
been suggested, however, that the
statutes of this state, permitting
alienation of whatever interest a
grantor has in real property, implied
ly repealed the statute de donis,
which ancient enactment converted
estates in fee simple conditional into
estates in fee tail Rowland V. War
rem. 10 Or. 1923. The absence of the
word "heirs" from the codicil does
not necessarily imply that a life es-
tate only was given, for words of in
heritance are not essential in Oregon
tn create or transfer an estate in fee
simple Il. o. L. Sec. 71O3) so that II
plaintiff took by the codicil an abso-
lutte estate, any attempt to limit a
fee upon such fee will not be sane
toned.
1t is argued by plaintiffs counsel
that the third clause of the codicil is
so different from the first and second
which were employed by the testator
to cut down the fee simple estate
given by the will to Mary c. Stafford
and Fred D. Love that a purpose is
disclosed to devise to Green c. Love
more than a life estate. A compari-
son of the first and second clauses
with the third will shows that the
differences observable are in the
phrases. that at her death" and
that at his death" in the former
and "that in case of his death" in the
latter, to which contingency is adj
ded the condition, without lawful
issue, born alive and living at the
time of his death, then the said de-
wise or legacy to him shall belong
and 20 to the remaining devisees Of
my said will in proportion as they
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02
Starts Much Trouble.

If all people knew that neglect Of
constipation would result in severe
indigestion, yellow jaundice or viru-
lent liver trouble they would soon
take DR.. Kings New Life Pills, and
end 1t. It's the only safe way. Best
for biliousness, headache, dypepsia,
chills and debility 25 cents at ]. G.
Perry's.
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02
Salem Bank
& Trust Co.
General Banking and Trust Business

General Banking and Trust Business
With our assurance that we are
able and willing to take care of it,
we solicit your Banking Business.
Open an account with us and we will
extend you every favor consistent
with good banking principles.
We Pay Four Per Cent on Savings
Liberty Street, Just on State
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-02

| EN- by
' is CITY
ore the
er pipe
Salem
lay six
oHSum-
is sold
IN price
lshment
in Sa.
that in
s there
be con-
average
at the
foot,
would
he peo-
o'ng to
by pipe,
DING to
be sales
lpe Co.,
t. Their
ment to
ur pat
re mon
service
longer.
nd EN-.
wages |
10 your |
o make /
all and |
The Washington times., 1911-10-18
kaufman'S Stock Mems Wear

Mems Seamless Half Hose, made
with double heel. In Isle, silk Isle
and maco cotton. In plain colors
and neat fancy effects. Kaufman's
price Csc pair. Our lola.
price ................... lZfSC
Mems Pure Thread Silk Half
Hose, Isle heel and toe. In black
and colors., Kaufman's price IT,
3sc pair. Our price. ........ llC
Mems Domet Flannel Pajamas,
extra full cut and we'll made.
Trimmed with silk frogs. All sizes.
Hauiman's 6nr imam price s2'oo' ST. 90
our price ......... vAsOV
Mems Silk, Lisle and Maco Cot
ton Half Hose. plain colors and
fancy effects. Kaufman's prices
soc and 76c pair. Our CSc
piiSS SOS
Mems Pure Thread Silk Half
Hose, regular made, with high
spliced heel and toe. Black CCo
and colors. Our price, pr. OCC
The Washington times., 1911-10-18

Printed WARP TaReta-In neat
Dres en- designs. Kaufman's
price, sec yard. Our CO~
40-ineh Satin Foulards-Pure
silk grade; black and navy blue
grounds with neat space
dots. Kaufman's price 800 AOo
yard. Our price ........... 3VN
24-tnch Pare SILK Scotch PIaiAs
"A good assortment Of styles.
Kaufman's price. 76c yard. COn
our price S~S
24-inch Gun Metal RoaGh Pongee
"A rich. lustrous quality. Kauf-
mans price Soc. Our price. COn
yard .................. 6ON
36-inch Pure Silk Satin Messa.
line-In Copenhagen, hello. gray.
sage green and copper. Kauf-
mans price 800 yard. Our S0r
price WV
The Washington times., 1911-10-18

Mems Wool Half Hose, with dou-
Bile heel and toe. All sizes. Kauf-
price mdnS price ise pair Our lie
Mems Muslin and Domet Flannel
Night Robes. extra full cut and
well made. All sizes. Kaufman's
prices aSc and sl.oo pair 15c
our pTice 0cS
Mems DometS Flannel Night
Robes, extra full cut; full Sc to
60 inches long. Some trimmed
with silk frogs. ,All sizes. Worth
priee priee and ss,o0' Our 79c
Mems Outseam Cape Kid Gloves,
newest shades of tan and brown.
All sizes. Kaufmans price TO-
pair, $3.50. Our price......... 6CC
Mems Lisle Carriers, of extra
strong elastic weddings and rust
less trimmings. Plain colors.
Kaufman's price 15c pair. cUso
Our price ............... VISC
The Washington times., 1911-10-18
kaufman's Stock. of
. Innings

Percalines. in black and black
for making skirts, etc. y. !.
kaufman's price 2sc yard. 1910
Our price .................,.. 1k1<C
Silk Percalines, including Nubian
Iast black grade, rich silky finish
and light weight. One yard vide
kaufman's price 35c yard. 1Oc
Our price ....................... lVC
light weight; in brown, tan, gar
net nile, etc. Kaufman's Q.3xo
price l5c yard. Our price,. C7rC
Sunburst Lining Satine, fully
mercerized, has the same appear
ance as satin, 36o inches wide.
. Kaufman's price Csc yard. 1Oo
The Washington times., 1911-10-18
kaufman'S Stock of Silks

z2-inch Satin F0ulards-All silk;
navy blue grounds with white dots
and neat figures. Kaufman's CON
price, SOC yard. Our price. .HCC
20-lnch Moire Velour-In black,
light blue. pink. old rose and ca
tswsa' ssrd' oS1 Kspf%sn's nIiss price soc 29c
77-inch TaHeta siIk-A rich,
lustrous quality, with heavy rust
ling finish. Guaranteed to wear.
Kaufman's price. 75c yard. AOn
Our price 3CC
24-inch Liberty Satin-AIl silk;
in black, white, cream. Alice,
copenhagen and plum. Kaufman's
price sec yard. Our OC~
price ..... ................ OOC
3S-inch Black Satin Duchesse-
Pure silk, rich deep satin finish.
Kaufman's price. $1.o0 yard. Coz
Our price ................. VCC
The Washington times., 1911-10-18

24-inch Pure s)lk Tussah Pom
gee-In neat self color space fig-
ures. Coiors include tan, gray and
coral Kaufman's price 76c COo
yard. Our price. ........... AOC
S0-inch Black M0ire Velour-A
heavy silk lustrous quality. Kauf-
mans price sec yard. Our 400
3s-inch Taa Cotella Pongee-An
extra fine, lustrous, pure silk
quality. Kaufman's price 81 SEo
yard. Our price. ............. OON
S0-lnch COtella Messa1ine-An
extra heavy hDG satin face grade.
Colors of myrtle. gray and garnet.
Kaufman's price S1.25 yard. C7n
Our price VIZ
30-lnch Natural Tan Tussah Pom
Eee-An extra fine pure silk quail
ity. Kaufman's price 85c yd. I0o
Our price ................ 1VN
The Washington times., 1911-10-18
kaufman'S Stock of
STATIONERY

Embossed Shelf Paper. in white,
red. nile. light blue, and yellow.
Five yards in each piece. Kauf-
mans price &c piece. Our price EO
three pieces for ................. "
Odds and Ends Of Lead Pencils,
with and without erasers. Made by
the Empire Lead Pencil Co. Kauf-
mans prices up to soc dozen. C0o
Our price NEUTRALITY-SUSPICIOUS.. HOO
Lot of Pinochle Playing Cards.
hand bristol finish stock, fully
glazed. Kaufman's price 25c 1no
pack. Our price ............... lVC
The Washington times., 1911-10-18
kaufman'S Stock of Small Wares

BELDINGS 60-YARD SPOOLS
SEWING SILK: regularly D.
oc'. '..................... CIV
BELDING's 1oo-YARp sPOOLs
SEWING SILK: regularly e.
1Vc.. ...............-..s.... .......- ~
RELDINa's SILK BIyTroNHoLE
TWIST: regularly 2hc; IT, <
CLARKE's 20. N. T." DARNING
COTTON; regularly &c H.
DRESS SHIELDS. many shapes.
kinds and sizes; values worth =.
up to 2Oc pair. ....................lC
BLACK OR WHITE COT =
TON TAPE; worth Sc roll...... &c
STAR" SKIRT BRAID; 4
regular &c rolls. ls..................... 1C
BEST QUALITY HORN WHALE.
BONES, black or blonde; all <
lengths. Worth UP to 15c doz. z....CC
JET HEAD HAT PINS; 4
worth 20 each. Two for.......... &c
WOMEN'S AND CHILDRENS
"PIN-ON" HOSE SUPPORT
ERS; values worth 10c ana 1bc e
paN.. .................'.. W
SMITHS BLUE LABEL"
ENGLISH NEEDLES; regu- ..
larly &c paper. ...................SS
The Washington times., 1911-10-18

GOOD QUALITY ENGLISH
DARNING COTTON, on cards:
all colors. Sold regularly at &c D
card. Six cards for. CC
DARNING COTTON. on spools:
black or white. Worth &c spool. &
Six spools for. ...................CC
sDREsaMAKEHs PINS: &C <
kinds. Six papers for..........:,..O
WHITE PEARL. BUTTONS. all
Hzes frcm II to n hgne: worth r.
&c card. Three cards for ..........OC
FEATHERSTITCH BRAID. six
yard pieces; neat colored ef- D
fects. Worth loo. c.....,..............SC
SKIRT BINDING, various =
kinds. Worth UP to l0c yard. .....lC
lee BLACK SILK COLLAR 4
BONE, yard. ..................-..... &c
ooo-YARD sPOOLs DRAGON AND
KINGS BASTING; regularly e
&c spool. Four spools for.........CC
GOOD QUALITY NICKEL SAFE
TY PINS, one dozen on card.
All sizes. Worth UP to SC. Three <
EXTRA QUALITY MOHAIR
SHOE IACES; worth SC pair. e
Three pairs for. or.....................C CC
FIvE-YARD ROLLS OF AN
CORA SKIRT BRAID: worth <
10c and 1bc.......... ~
The Washington times., 1911-10-18
Sheets, Ginghams and Domestics
from the Kaufman Stock

Yard-wide Percales. in stripes.
checks, dots. figures. rings and
broken plaids. Fine close woven
grade, soft finish. suitable for MAX
ing women's and children's
wearables, also mems shirts. ~ 4
Raufman's price l2tc yard. 4c
Our price.................. ~
Standard Apron Ginghams, In
shssks. sissl 0fs%n Rsuimans ana price ssssn se H.
yard. Our price. o.
2-inch White Outing Flannel. a
heavy fieeced quality, for IA
winter ,,, wear: Raufman's 7C
One case Of Outing Flannels.
striped and checked effects. Colors
of light blue. gray. tan. green. red,
ity, sss, far q hsasE msK,ns i,se'sS %o%sns ssa!s
gowns, underskirts, etc. "a
kaufman's price 10c yard. h1N
Our price. ................V
T-inch 'Fleecedown Flannelles, in
a large assortment OF new styles
and colorings. such as stripes. dots,
Persian designs, floral pat
terms, etc. Ian estrar heavy
grade. for making women's
.ktmonOs and house gowns. ~
kaufman's price l5c yard. N1N
Our price,. ...............V ~
ss-inch Superior Quality Cambria.
3 fine soft finish grade, free "a
from starch. Kaufman's tN
price 12Mc yard. Our price,. ! ~