FILED: September 12, 2001

DOROTHEA KIDDER,

Appellant,

v.

HAROLD OLSEN,
the duly appointed and action
Personal Representative of
the Estate of Newell A. Lawley;
and HEATHER GARTIN,

Respondents.

Appeal from Circuit Court, Columbia County.

Berkeley Smith, Judge.

Argued and submitted June 12, 2001.

Robert P. Van Natta argued the cause and filed the brief for appellant.

No appearance for respondent Harold Olsen, Personal Representative of the Estate of Newell A. Lawley, Deceased.

David Brian Williamson argued the cause for respondent Heather Gartin. With him on the brief was Williamson & Williamson.

Before Haselton, Presiding Judge, and Linder and Wollheim, Judges

HASELTON, P. J.

Affirmed.

HASELTON, P. J.

Plaintiff Dorothea Kidder, a devisee under the will of the decedent, Newell A. Lawley, appeals from a declaratory judgment that, pursuant to the terms of decedent's will, defendant Heather Gartin has the right to purchase decedent's farm for $46,160, which represents one-half of the property's tax-assessed value at the time of decedent's death. (1) We conclude that the trial court correctly construed the will and that Gartin's failure to tender that price within 180 days of decedent's death was excused and, thus, did not preclude Gartin's entitlement to purchase. Consequently, we affirm.

The facts, except as noted, are uncontroverted. Decedent died testate on March 3, 1998. Decedent's will, which he executed on November 7, 1995, contained the following provisions relevant to this dispute:

"2.1 PERSONAL REPRESENTATIVE. I name Heather Louise Parker Gartin, hereinafter referred to as 'Heather', as my personal representative. If Heather fails to qualify or ceases to act as my personal representative, I name Dorothea M. Kidder, hereinafter referred to as 'Dorothea', as my personal representative.

"* * * * *

"3.1 TANGIBLE PERSONAL PROPERTY. I give any interest I have in household goods and furnishings, personal vehicles, recreational equipment, clothing, jewelry, personal effects, and other tangible personal property for personal or household use, together with any insurance on this property, in substantially equal share to the following persons who survive me: Heather and Dorothea, to be divided equally among them as they agree or, if they do not agree, as my personal representative determines.

"3.1(a) I give all my farming implements belonging to me at my death that are on my farm located at 10874 Swedetown Road, Clatskanie, Oregon to Heather.

"* * * * *

"4.1 PRIMARY BENEFICIARIES. I give the residue of my estate to Heather and Dorothea share and share alike and to their descendants by right of representation. EXCEPT, Heather shall have the right to purchase the farm at:

"All Lot #1 in Block #8 in Spitzenberg, according to the duly recorded plat thereof, situated in the County of Columbia, State of Oregon. All mineral rights reserved, but if exercised, full compensation for all damage to land or improvements is guaranteed.

"by paying Dorothea half the then-current tax assessed value in cash or cash equivalent. If Heather does not give Dorothea written notice of her intent to purchase the farm within 60 days of my death and does not close the sale within 180 days of my death, under the terms and conditions specified above, the farm should be liquidated and the value divided equally between Heather and Dorothea."

Following decedent's death, Gartin was appointed personal representative.

At the time of his death, decedent owned two pieces of real property, neither of which was located in Spitzenburg. The first, a roughly 90-acre parcel known as "tax lot 500," is located at 20874 Swedetown Road in Clatskanie, and is described to encompass:

"The North Half of the Southeast Quarter of Section Twenty-six (26), in Township seven (7) North of Range four (4) West of the Willamette Meridian, and also commencing at the Southwest corner of the Southwest Quarter of the Northeast Quarter of said Section twenty-six, and running thence East forty rods; thence North forty rods; thence West forty rods; and thence South forty rods to the point of beginning."

The second, a forested 40-acre parcel adjacent to tax lot 500 and known as "tax lot 300," is described as follows:

"North Half (N