123 P. 46 | Or. | 1912
delivered the opinion of the court.
The testimony shows that the claimant’s wife was a niece of George H. Lucke, and, though she lived with
“Mr. and Mrs. Lucke considered Mr. and Mrs. Herbert P. Consor just about the same as though they were their own children.”
In consequence of illness, Mrs. Consor, returned, March 8, 1899, with her daughter Jessie H., then nearly six years old, to the home of Mr. and Mrs. Lucke, where they resided until September 25, 1900, when Mrs. Consor died, but the daughter remained until October 1, 1907, when she went to live with her father in Chicago. Lucke had been a soldier and received a small pension, which settled monthly allowance and trifling sums obtained from the sale of fruit raised on a lot in Portland owned by Mrs. Lucke constituted their income. Consor testified that in October, 1900, in a conversation with Mr. and Mrs. Lucke, he agreed to pay them $15 a month for the board, lodging, etc., of his daughter, and also to advance the further sum of $20 monthly, in consideration of which latter payment they stipulated either to reimburse him or upon their death to leave to him their property, consisting of a house and lot, known as No. 1125 East Taylor street, Portland. About three weeks thereafter, or from January 4, 1901, to and including September 3, 1907, or a little less than a month prior to his daughter’s departure to Chicago, Consor sent from that city monthly to Lucke a post office money order for $35. The statute declares that no claim that has been rejected by the representative of a decedent’s estate “shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant.” Section 1241, L. O. L. Complying with this requirement, there was offered in evidence the deposition of Jessie H. Consor wherein it was stated that after the
“I am in hope we can reduce your remittance if our boarder is a continued success.”
Lucke on May 23, 1901, wrote Consor in part as follows:
“Yours of the 19th inst. and encd. two postal money orders, each for one hundred dollars, $200, came to hand this 3 o’clock p. m. Many thanks for your promptness. Yes there are only $300 to come yet and I can assure you that all will be spent judiciously and carefully and that to date we can say we own the most valuable of all properties within three miles around us, and after a while you will realize that this was a most lucky investment. Our Providence Group” (referring to mining claims in Baker County), “is looming up, according to experts’ opinion. Many a one would now like to be a part owner. * * As for your own share in this don’t you worry. You need no money. You have done your share and I thank you for it and promise that you will have your 1-3 interest, as it is, without another dollar on your part.”
“I hope in some way you will be fully repaid for your great kindness to us. If for no other reason than this, I trust the mines will be a success and thus prove a blessing to all of us” — referring to mines and mining claims in Baker county in which she and Consor held a joint interest.
A letter written by her to him August 31, 1901, contains the following clause:
“I suppose Papa spoke in his letter of the receipt of your remittance that we received early in August. We were busy with our sick boarder. Consequently I did not write. Many thanks all the same. Your kindness in this way enables us to keep Anna with us” — referring to a servant.
A letter written by Lucke to Consor, September 5, 1901, from Annex, which is supposed to be near the mining claims, contains the following language:
“Yesterday your welcome letter arrived with the usual remittance. Many, many thanks. We concluded on account of your kindness to reciprocate and as mother is sole owner of everything here she has made up her mind with me to fully compensate you and make out legal papers to secure your interest with us in case of our death.”
Whether the word “here,” in the excerpt quoted, limited Mrs. Lucke’s ownership to the property in Baker County, or extended the proprietorship to all her property in the State of Oregon, cannot be ascertained from an inspection of the writing. Lucke on April 10, 1902, writing to Consor from Portland, and referring to Baker County and to the mining claims, said:
“I got a letter from Sumpter, telling me that snow will be one month later up there this year so I won’t go till May. I shall send your deed to you soon from the*488 recorder’s office at Sumpter. My time when there will be principally occupied to sell the group during summer. As soon as we strike it richer it will sell easy enough.”
Lucke on May 31, 1902, wrote Consor in part as follows:
“Yours of the 25th eel. the $200 postal money orders came to hand yesterday. * * It is our sincere wish and desire to have you with us and in the end continue to occupy this home with Jessie and for her sake to be near her and to enjoy it together always.”
Mrs. Lucke on September 23, 1902, wrote Consor a letter from which the following extract is taken:
“By the way, do you know if there was really any deed of that lot ever made to Jennie? We cannot find any record of the same at the courthouse, and we have no papers to show there is any such deed unless among her papers. Maybe we thought ‘our’ will made all in her favor would cover the whole premises, but now that the lot belongs entirely to you, and if there is no such paper you must have those made. I remember us speaking about it when you were here, under the impression there was a deed and therefore it must be held for Jessie until she was of age.”
It is supposed the “Jennie” referred to in the letter was Mrs. Consor, who died September 25, 1900, and the lot mentioned is a tract of land in Sunnyside addition which Mrs. Lucke on April 18, 1895, stipulated' in a bond for a deed to convey to Mrs. H. P. Consor upon the payment of $227.50. Consor testified that after the death of his wife he paid the sum of money specified, whereupon Mrs. Lucke and her husband conveyed the premises to him. Lucke on July 7, 1904, wrote Consor as follows: “Yours of the 3rd inst. & usual order at hand. * * Thanks to you for all you have done so far. You will surely be repaid and we shall then have a better mine than ever.”
The foregoing is a brief epitome of the evidence, and based on a consideration of the entire probative matter presented at the trial of the issues the jury were instructed to the effect that, the demand having been rejected by the administrator, the claimant was required to produce some competent or satisfactory evidence other than his own testimony in order to entitle him to establish the claim as an indebtedness against the estate. An exception was taken by counsel for the administrator to a refusal to charge the jury as follows:
“The court instructs you that post office money order receipts in evidence in this case and the acknowledgment of this receipt by the deceased, if you find that to be a fact, are not in themselves proof of a loan of money by claimant to decedent, or proof that decedent was indebted to claimant in any sum whatever ”
It is maintained that an error was committed in this respect. It is insisted by counsel for the claimant, how
Believing that an error was committed in refusing to give the instruction requested and that the mistake in this respect affected a substantial right, the judgment is reversed, and a new trial ordered.
Reversed.