136 P. 881 | Or. | 1913
delivered the opinion of the court.
The deed in question was executed December 22, 1909. It purports to convey to the defendant Moffett sundry tracts of land in and about the City of Portland, of the probable value of $150,000, reserving to the plaintiff a life estate therein, subject to a mortgage of $7,500. The plaintiff has resided in that vicinity since early childhood with the exception of about seven years spent in eastern Oregon. She says that she was born December 21, 1842, and consequently was 67 years of age the day before the execution of the deed. Her only living children are James Peter Moffett, defendant, aged 50 years at the hearing of the case, and William H. Moffett, about 10 years younger. Owing to a prenatal accident, the latter was weak both in body and in mind, and had always been an object of particular care and solicitude on the part of his mother. The
The property in question consisted in part of 100 feet square at the corner of Seventh and Salmon Streets in the City of Portland, occupied by the plaintiff as a residence, and which otherwise produced no revenue or benefit to her. She also had in the southern part of the city some wild land acreage of about 70 acres, descending to her from her father’s estate. In other parts of the city she had some buildings leased, but the total income from all the property from all sources amounted to only about $150 per month. The taxes and various municipal improvements constituted charges upon the property far in excess of the revenue derived therefrom. The matter of leasing the property for a long term had been under discussion in the family for many months. The defendant son had been active in keeping down assessments and in otherwise looking after the property in general, although he did not collect any of the rents for his mother. The plaintiff is characterized by several witnesses as notional, and the testimony and history of the case justify the appellation. She was naturally very much attached to her home, where she had resided for almost half a century. The question of the disposition of her property was frequently discussed between herself and her defendant son. By turns she talked of making her will and making a deed. She
It appears that she employed counsel during the month of January, 1910, with a view of instituting a suit of the kind now under consideration; yet as late as February 7, 1910, plaintiff executed the authority to her defendant son to lease the residence property for the period of 90 years. This writing was executed in duplicate in the presence of a disinterested witness, to whom the plaintiff committed the custody of her copy of the same. After reciting the minimum rent to be reserved, that instrument contains the following provision: “And the revenue received shall be divided monthly, share and share alike between us so long as Charlotte Moffett Cartwright shall live. And after her death the one half of the monthly revenue received shall be paid to the legal representative of William Henry Moffett, so long as the said William Henry Moffett shall live.” The brother was very much opposed to this agreement and at the time of its execution seized one copy of it and attempted to destroy it; but, according to the testimony of the witness, the mother rebuked him, made him leave the room, and locked the door to prevent his return.
As an indication of the mental caliber of the brother, it may be here noted that he expressed but two objections to the instrument last referred to; one was that the defendant had signed the same above the name of the mother, and the other was that the lease, after it was negotiated by the defendant, recited a rental in excess of the minimum expressed by the agreement between the mother and son. The least amounts prescribed by the authority to lease were $200 per month
The decree of the court below is affirmed, and the cause remanded for such further proceedings as may be necessary in closing up the transaction of leasing, and other matters connected with the suit, the details of which can be better left to the supervision of the Circuit Court. Affirmed.
Decided February 17, 1914
On Petition to Recall Mandate.
(138 Pao. 1076.)
Mr. Justice Moore delivered the opinion of the court.
“This defendant has offered and tendered-to execute a declaration of trust in favor of William Moffett, giving to him an equal interest in the property with this defendant, and has offered and tendered to exe-' cute all necessary documents to that end, to give and insure to the plaintiff entire income from all of the property during her lifetime, and, if desired, to convey said property to some suitable trustee, either an individual or a trust company, upon such terms as would give to the plaintiff the entire income, use and benefit of the property during her lifetime, in other words, to give her a full life estate therein, and subject to such use and life estate, the property to be divided and enjoyed by this defendant and William Moffett, share and share alike, and now offers and tenders the foregoing, and to do all acts and to execute all papers*380 necessary to carry the same into effect, or, if deemed proper and advisable by the conrt, this defendant now consents and suggests that the deed described in the complaint be so reformed and changed in its terms by decree of this court, and the arrangement under date of February 7, 1910, be so changed and modified by the decree of this court, as to carry into effect the foregoing offers and tenders upon the part of this defendant. ’ ’
At the trial the judge inquired of the plaintiff: “If the court would make an order directing that this' property be put in trust for you during your life, all of it, and upon your death to go to your children, share and share alike, would that be satisfactory?” To this question, she replied: “Yes; that is all right.”
The decree given by the trial court did not contain the provisions thus offered and accepted. It did not divide the property involved between the defendant Moffett and his brother, share and share alike, or at all. The error in this respect, however, was not sufficiently called to the attention of this court when the cause was heard on appeal.
The mandate sent down will be recalled, and when received it will be corrected and returned to the lower court, with directions to enter a decree in accordance with the original mandate, but modified so as to conform to the offer made in the defendant’s pleading and the acceptance thereof as evidenced by the plaintiff’s testimony hereinbefore quoted.
Mandate Recalled and Decree Modified.