181 P. 986 | Or. | 1919
Lead Opinion
The history of this case presents an unfortunate situation. Thomas F. Graber, the payee named in the note and mortgage, was a lawyer, having his offices in Oakland, California. After the final settlement and distribution of the Boswell estate, and
The remaining items going to make up the consideration of the note sued upon, consist of a number of sums of money advanced to defendant at various times, certain bills of hers paid by him, and the sum of $500, which constitutes his charge for legal services, and $75 as traveling expenses necessarily incurred in the same connection. We are satisfied that these items are cor-I rect and reasonable, and should be allowed.
Rehearing
Former opinion modified November 4, 1919.
On Rehearing.
(185 Pac. 231.)
On rehearing former opinion modified.
Modified.
Mr. Oliver P. Coshow, for the petition for rehearing.
Messrs. Neuner & Wimberly and Mr. C. L. Colvin, contra.' i
The original opinion in this case will be found in 181 Pac. 986, where a statement of the issues may be found. The conditions under which both parties appear, render it'exceedingly difficult to arrive at a satisfactory solution of the problems presented. Captain Boswell, a retired officer of the regular army, died at Boswell Springs, in Douglas County, on May 19, 1907, leaving a surviving widow, who is the defendant here, and a small estate, of which the principal item is the real property known as Boswell Springs. Captain Boswell left a will in which he named Thomas F. Graber as executor. The latter, being a resident of Oakland, California, where he was practicing attorney, could not qualify,as executor, by
Upon assuming the duties of legal adviser to Mrs Boswell, the condition of her estate prompted him to advise her that in order to raise money for her immediate needs and in paying off certain indebtedness, she should give him her note, secured by mortgage upon certain of the real estate, and he would advance the necessary funds. This was subsequently done, the note being for the sum of $2,000, with interest at 8 per cent. At the time when the note and mortgage were executed, an insignificant amount of money had been advanced by Mr. Graber. Subsequently a portion of the real property was sold for $2,000, cash.
Mrs. Boswell continued to conduct the hotel at the mineral springs for about a year after her husband’s death, when it was destroyed by fire, together with her account-books and all business memoranda, and she then went to California, where she has since resided. She placed implicit confidence in her legal adviser, and as a consequence has to depend very largely upon memory for any evidence of their business transactions, and this source of information is necessarily unsatisfactory. Mr. Graber, while it appears that he was faithful to her interests- (although we may well question his judgment in some particulars), was, to
We find, from the evidence, that Mr. Graber paid $526.53, of the claims against the estate, expended $75, in traveling expenses in connection with the probate, paid $7.00 for notarial and recording fees, and plaintiff is entitled to recover these, together with $500, attorney’s fees in probating the estate, with interest to date, amounting in all, to the sum of $1,796.60. In addition to this, he advanced money to the defendant in the sum of $340.90, which with interest to date, amounts to $566.98, and the decree will therefore be for the total-sum of $2,363.58, and the usual decree of foreclosure. Neither party shall recover costs in either court.
Former Opinion Modified.