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Larsell v. Clarke

November 30, 1972

LARSELL, RESPONDENT,
v.
CLARKE ET AL, PETITIONERS.



On review from the Court of Appeals.

Paul Gerhardt, Portland, argued the cause for petitioners. With him on the brief was Bartlett F. Cole, Portland.

Douglas H. Stearns, Portland, argued the cause for respondent.

Tongue, J., dissenting.

Per Curiam.

We granted the petition for review in this case because it was the tentative opinion of at least three members of the court that the Court of Appeals may have erroneously applied the law of ademption as previously developed in this state. After oral argument and further study of the question, we are now of the opinion that the Court of Appeals (9 Or App 61, 495 P2d 57) correctly applied the law and its decision must therefore be affirmed.

Disposition

AFFIRMED.

TONGUE, J., dissenting.

In my opinion, the decision of the Court of Appeals, as now adopted by this court, illogically and improperly broadens the exceptions to the general rule of ademption by extinction in order to bring the facts of this case within such exceptions. The result, in my opinion, is that the "identity theory" of ademption, as previously adopted by this court and by nearly all courts, has in effect been discarded in favor of the so-called "intent theory" of ademption, which has been rejected by most courts.

McALLISTER, J., joins in this dissent.

19721130

© 1998 VersusLaw Inc.

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