153 P.2d 813 | Okla. | 1944
Laura White, nee Stall-ings, and Billy Darrow brought this action in the district court of Jefferson county, Okla., against Orah Stallings, individually, and as administratrix of the estate of J. T. Stallings, deceased, Jeptha O. Stallings and L. A. Stallings.
Plaintiffs alleged in their petition, and the court found on sufficient testimony, that Susan A. Stallings died intestate in 1909 leaving as her heirs her surviving husband, J. T. Stallings, and their children, J. B. Stallings, J. R. Stallings, J. T. (Jep) Stallings, L. C. Stallings, L. A. Stallings, Laura L. Stallings, now White, Katie C. Stall-ings, now Nolen, Nettie J. Stallings Darrow and W. G. Stallings; that J. T. Stallings, her husband, died intestate in 1910 leaving as his sole and only heirs the above-named children; that W. G. Stallings, their son, died in 1911 leaving as his sole and only heirs the above-named brothers and sisters; that the said W. G. Stallings had never been married and was without issue; that Nettie J. Stallings Darrow died intestate in 1912 leaving as her sole and only heirs two children, Ida Darrow and Billy Darrow; that Ida Darrow died intestate in 1921 leaving as her sole and only heir her brother, Billy Darrow; that the said Ida Darrow had never been married; that on the death of the father, J. T. Stallings, each of the above-named children became the owner of an undivided ■ one-ninth (l/9th) interest in his interest in the estate of Susan A. Stallings; that on the death of W. G. Stallings his brothers and sisters inherited his undivided l/9th interest in said estate; that this interest increased the interest of the surviving brothers and sisters to l/8th in the estates of the father and mother; that upon the death of Nettie J. Stall-ings Darrow her interest in said estates was inherited by her husband, Jesse P. Darrow, and her two children above named; that upon the death of Ida Darrow her interest in said estates was inherited by her father, Jesse P. Darrow, and Billy Darrow; that Jesse P. Darrow married again and after his death his widow conveyed any. interest she might have therein to Billy Darrow; that the final decree in the estate of J. R. Stallings, deceased, prevented Billy Darrow from receiving any interest through him; that the estates of J. T. Stallings and Susan A. Stall-ings consisted of a farm located in Texas, some bank stock in the City National Bank of Bowie, Texas, and some cash on deposit in said bank; that in 1912 Stallings Brothers, a partnership consisting of J. R. Stallings, J. T.
Order of the court permitting Rubye Stallings Sharp to intervene having first been obtained, she filed her petition of intervention. Therein she alleged substantially the same facts with reference to the estates of J. T. and Susan A. Stallings as alleged in plaintiffs’ petition. She further alleged that J. B. Stallings died intestate in 1914; that at the time of his death he was the owner of an undivided l/8th interest in and to the estates of J. T. and Susan A. Stallings; that he left surviving four children, Rene Stallings, Bessie Stall-ings, now Graham, Mildred Stallings, now Boyer, and Rubye Stallings, now Sharp; that she inherited and became vested with an undivided l/48th interest in the estates of J. T. and Susan A. Stallings through her father; that she was entitled to nothing as an heir of J. R. Stallings, deceased.
The court concluded as a matter of law (1) that on the death of Susan A. Stallings her estate became vested in her heirs above named; (2) that upon the death of J. T. Stallings his estate became vested in the heirs above named; (3) that upon the death of W.
The court entered judgment in conformity with the findings of fact and conclusions of law provoking this appeal.
The plaintiffs in error as grounds for reversal of the judgment below urge the following propositions:
“1. Where a petition sets forth two causes of action which are inconsistent in that proof of one will necessarily disprove the other, it is proper to require plaintiff to elect the remedy which he will pursue.
*652 “2. That part of paragraph 5 of the findings of the court that certain funds inherited by plaintiffs and ‘invested by them in what was known as Stall-ings Brothers Ranch with the oral or implied understanding and agreement with their brothers and sisters, being the other heirs of J. T. Stallings, deceased, and Susan A. Stallings, deceased, who signed said conveyance, that said $3,500 would participate in the future proportionately to the then value of said ranch in the losses and profits of said ranch, and that said heirs of said J. T. Stallings and Susan A. Stallings should be partners in said ranch, including land and personal property, to the extent of said $3,500. That about the year 1915 said bank stock in said City National Bank of Bowie, Texas, was sold for $2,225 and was invested . in said ranch in the same manner and with the same understanding and agreement as said $3,500’ is contrary to and is not supported by the evidence.
“3. A partnership is dissolved by the death of a partner.
“4. A partner’s only remedy is suit for accounting.
“5. An action for an accounting of a dissolved partnership is barred within three years.
“6. Where one pays money to another for an interest in real and personal property, with an agreement that the recipient of the money is to operate a business for himself and the pay- or of the money, an express trust is created.
“7. An express trust is invalid unless in writing.
“8. The finding by the court that J. R. Stallings, to the date of his death, J. T. Stallings, to the date of his death, and L. A. Stallings were acting as trustees for plaintiffs and intervener as to their interest in the Stallings ranch is contrary to and not supported by the evidence.
“9. Beneficiaries of an alleged trust, who make no claim of such trust for 28 years, during which time two of the trustees have died, and no accounting has been asked or made, are barred by laches.
“10. The plaintiff, Laura White, was an incompetent witness to testify to transactions and conversations had with J. T. Stallings, deceased.”
It will not be necessary to consider all of the above propositions for the reasons which will hereinafter appear.
The first contention made rests upon the assumption that the allegation of partnership and a trust relation arising therefrom is so inconsistent that an election of remedies should have been required; this contention cannot be sus-stained. Partners are trustees for each other as to partnership property. 54 O. S. 1941 § 9. There was no such inconsistency as was the case in Abraham v. McSoud, 188 Okla. 409, 109 P. 2d 822; Oklahoma Wheat Pool Terminal Corp. v. Rodgers, 180 Okla. 623, 70 P. 2d 1080; Gypsy Oil Co. v. Colbert, 179 Ókla. 321, 65 P. 2d 505, cited and relied upon by plaintiffs in error.
It will be observed from the foregoing statement of facts and contentions that we have presented here one of those loosely constructed, but not unusual, characteristic family arrangements. This is a case of equitable cognizance and the determination and judgment of the trial court should not be disturbed unless clearly against the weight of the evidence if sustainable under any legal theory. Davis v. Childers, 181 Okla. 468, 74 P. 2d 930; Lewis v. Ingram, 57 F. 2d 463.
The contention of plaintiffs in error relative to the plea of laches is answered by what was said in Cassidy v. Gould, 86 Okla. 217, 208 P. 780, wherein we said:
“The question of whether a claim is barred by laches must be determined by the facts and circumstances in each case, and according to right and justice. Laches in legal significance is not merely delay, but delay that works a disadvantage to another.”
Under the record here presented the delay of plaintiffs is not shown to have operated to the disadvantage of the persons who might have been entitled to urge such defense.
We have examined the record and think the trial court reached an equitable and just conclusion as to the interest of the various parties, and we will not disturb its judgment.
Affirmed.