Blacklaw v. Blacklaw

• Decision Date: 30 April 1935
• Citation: 150 Or. 244,44 P.2d 728
• Parties: BLACKLAW et al. v. BLACKLAW et al.
• Court: Oregon Supreme Court

44 P.2d 728

150 Or. 244

BLACKLAW et al. v. BLACKLAW et al.

Supreme Court of Oregon

April 30, 1935

In Banc.

Appeal from Circuit Court, Linn County; L. G. Lewelling, Judge.

Suit by Annie E. Blacklaw and another against Alma Blacklaw and another. From a decree for plaintiffs, defendants appeal.

Modified and affirmed.

J. K Weatherford and Mark V. Weatherford, both of Albany (Weatherford & Wyatt, of Albany, on the brief), for appellants.

John H Carson, of Salem, and Arthur K. McMahan, of Albany (Marks &amp McMahan, of Albany, and Carson & Carson, of Salem, on the brief), for respondents.

RAND, Justice.

This suit was instituted by Annie E. Blacklaw and Josephine Blacklaw Marsh against Alma Blacklaw, the widow of plaintiffs' deceased brother, James Q. Blacklaw, and A W. Bowersox, the administrator of his estate, seeking to impress a trust upon an undivided two-thirds interest in 33 acres of land, the legal title to which was in decedent, and also to impress a trust upon a like interest in the moneys securities, and other personal property which was in his possession at the time of his death. From a decree holding that the decedent was holding a two-thirds interest in said properties in trust for plaintiffs at the time of his death, the defendants have appealed.

The transactions out of which this controversy arose are, in substance, as follows: In 1882 John Blacklaw, the father of plaintiffs and decedent, died in Pawnee county, Neb., leaving in straitened circumstances a family consisting of his widow, Margaret E. Blacklaw, and five minor children, Josephine, the oldest, then being about fifteen years of age, Annie, James, John, and Will. In order to support the family, Josephine secured employment at housework, and Annie began teaching in the public schools after reaching the age of sixteen years. The three boys worked at whatever jobs they could find to do, and all of them turned their earnings over to their mother. This continued until May, 1891, when, in order to better their condition, the mother, with her three sons, drove to Oregon, arriving in Lebanon on September 25th of that year. They brought with them all their possessions, which consisted of two teams, wagons, harness, and a few household goods. In order to defray the expenses of the trip and to support the family after their arrival in Lebanon, the two girls forwarded their earnings to their mother and the boys worked at places along the road and after their arrival in Lebanon. All of them turned their earnings over to their mother, who had less than $1 when she reached Lebanon. The following spring Annie came to Oregon and Josephine came the next fall, all of them taking up their residence with their mother.

All the members of the family were industrious, saving, and thrifty, and, after their arrival in Lebanon, it was agreed that the earnings of all should be put into a common fund and be turned over to James, the oldest boy, who was then about nineteen years of age, to be held as a joint fund, and, so far as necessary, be used for the support of the family, the surplus to be invested for their joint benefit. Under this agreement James assumed the control and management of all their business affairs and received all their earnings. Annie resumed teaching in Oregon, Josephine worked out, and the three boys worked at whatever they could find to do. All of them turned over their earnings to James.

From these family funds and other moneys received from the sale of a leasehold estate in Nebraska, belonging to the mother, James purchased, a 40-acre tract of land in what is known as the Tennessee Valley near Lebanon for the sum of $900, taking title thereto in his own name. The consideration was paid partly in cash and the balance secured by a mortgage on the purchased property. At the time of the purchase, 10 acres of the land had been cleared; the balance being in timber and slashings. That year a house was built on the premises at a cost of about $800, and it has since been occupied as the family home. The mortgage was paid and the remainder of the land was cleared and placed in cultivation by the labors of the family during that year.

Under the same arrangement, an adjoining tract of 52 acres was purchased in 1899 for the sum of $1,500, and title taken in the name of John.

In 1902 another tract of 20 acres was purchased, and title thereto was taken in the name of Will. A short time after this purchase was made, Will married and, as a settlement of his interest in the common property, he was paid $400 in money and given the absolute title to the 20 acres that had been purchased in his name, following which deeds were executed conveying the other 92 acres of land in equal shares to the mother, the two girls, and James and John. Shortly thereafter John married, and, as a settlement of his interest in the common property, he was paid the sum of $2,200, and conveyances were made which vested the title to the 92 acres of land in equal shares to the mother, the two girls, and James.

In 1924 the mother died, and, by her will, she gave and devised all her interests in the common property to Annie and James share and share alike.

There is no controversy in respect to the title to the 92 acres above referred to. It is admitted that at the time of James' death he owned an undivided three-eighths interest therein, Annie an undivided...