De Bow v. Wollenberg

• Decision Date: 23 June 1908
• Citation: 96 P. 536,52 Or. 404
• Parties: DE BOW et al. v. WOLLENBERG et al.
• Court: Oregon Supreme Court

96 P. 536

52 Or. 404

DE BOW et al. v. WOLLENBERG et al.

Supreme Court of Oregon

June 23, 1908

Appeal from Circuit Court, Clackamas County; T.A. McBride, Judge.

Suit by Rachel De Bow and others against H. Wollenberg, as surviving partner and administrator of the partnership of S. Marks & H Wollenberg and as administrator of the partnership of S Marks & Co., and others. From a decree for plaintiffs defendants appeal. Modified and affirmed.

This is a suit by Rachel De Bow, Sura Hartbrod, Clara Marks as administratrix of the estate of Adolph Marks, deceased, and Meier Marks, to set aside, on the ground of fraud, two deeds and a bill of sale to real and personal property in Douglas county, Or., claimed to have been executed by Zulkind Krotki to Herman Marks. The complaint, in substance, states: That Rachel De Bow, Sura Hartbrod, Adolph Marks, and Meier Marks and the defendants Saul Marks and Asher Marks, testator of the defendant Herman Marks, were brothers and sisters, lawful children, and the only heirs of Zulkind Krotki, of Dobrzhyn Russia; that Zulkind Krotki, Shoel Krotki, Shmul Krotki, and Myndel Krotki were brothers and sisters and the only children and heirs of Marcus Krotki, late of Dobrzhyn, Russia; that Shmul Krotki removed to Douglas county, Or., in 1854, and there engaged in business under the name of "Samuel Marks"; that Samuel Marks and defendant H. Wollenberg were engaged in business in Canyonville and Roseburg in said county, under the name of S. Marks & H. Wollenberg; that Samuel Marks engaged in business also with Asher Marks at Roseburg under the firm name of S. Marks & Co.; that the partnerships named continued until Samuel Marks' death, which occurred on September 20, 1893; that at the time of his death the firm of S. Marks & H. Wollenburg had acquired, in the course of its business, a large amount of real and personal property, consisting of money, county warrants, building and loan stock, cattle and sheep, and unsecured promissory notes, valued at more than $36,585.20, promissory notes, secured by mortgages on realty, of the value of over $143,855.48, and 3,000 acres of land of the value of over $30,000; that the aggregate value of the firm's entire property was over $210,440.68; that the firm of S. Marks & Co., at the time of Samuel Marks' death, in the course of its business, had acquired, was the owner, and in possession of property consisting of merchandise of not less than $12,442.35, book accounts, $22,777.85, promissory notes and mortgages on realty, $73,413.11, 9,000 acres of land, $90,000, timber lands in Coos county, $13,210, and city lots and buildings in Roseburg of the value of $32,000, aggregating in all $243,843.31; that Samuel Marks had acquired, and at the time of his death was the owner and in possession of, individual property of the value of $7,222.90, together with the ownership of one-half interest in the property of each of said firms; that his interest or share therein, after the payment of all debts, together with his individual property, exceeded in value $159,000; that Samuel Marks died intestate in Douglas county, Or., leaving his said brothers, Zulkind Krotki and Shoel Krotki, and his sister, Myndel Krotki, all of whom were then living, his sole and only heirs at law; that Asher Marks was duly appointed administrator of the partnership estate of S. Marks & Co., October 9, 1893, and duly qualified as such, taking possession and custody of all the property of the estate, and continued to act as administrator thereof until his own death, August 31, 1899; that on September 29, 1899, defendant H. Wollenberg was duly appointed administrator de bonis non of the estate of S. Marks & Co. and on October 2d, following, was duly appointed administrator of the estate of S. Marks & H. Wollenberg, qualified as such, and took into his custody and possession all of the property of said estates, and has at all times since continued to act as such administrator of each of the estates still pending and unsettled in the county court of Douglas county, and, as such administrator, Wollenberg has also taken into custody and possession all of the individual property of Samuel Marks, and is assuming to administer upon the same; that Zulkind Krotki, at Dobrzhyn, Russia, received information of the death of Samuel Marks on October 23, 1893, at which time he was infirm both in body and mind, being 91 years old, and unable personally to attend to the settlement of the estate of Samuel Marks or to look after his interest or share therein, and anticipating his own demise before any distribution thereof could be effected, and ignorant of the laws of Oregon and the practice in settlement and distribution of estates therein, and unable to speak, read, or write the English language, but being desirous of arranging his affairs so that each of his children named would obtain an equal share of the proceeds of his interest in the estate, after the payment of $1,000, which he had decided to give to Daniel Aurbock, concluded to and did execute a power of attorney to, and in favor of, his children jointly, and delivered it to his eldest daughter, Rachel De Bow, to bring to the United States, to enable all six of his heirs there designated to act in concert, with full power to collect his interest, and with instructions that, after first paying his son-in-law, Aurbock, $1,000, they should divide the remainder equally between themselves; that Rachel De Bow brought the power of attorney to the United States for the purpose of placing it on record and in order to distribute the estate; that soon after her arrival in Portland, in March, 1894, she was met by Asher Marks, to whom she explained her father's purpose, whereupon he, falsely representing to her that the power of attorney was insufficient and could not be used to effect her father's purpose, prevailed upon her to surrender it to him and to return at once to her home in Russia for the purpose of persuading her father to execute to Herman Marks, in place of the power of attorney, two deeds and a bill of sale for his entire one-third interest in the estate of Samuel Marks, upon his assurance that these instruments were necessary and proper to enable him to effect the desired purpose; that he promised upon their return to him, duly executed and by means thereof, speedily to adjust, settle, and collect their father's one-third interest, and equally to divide the estate between the six children, the first advancement to be to Rachel De Bow of the sum of $1,000, as an advancement on her share of the estate out of which she was to satisfy Aurbock's claim; that the deeds and bill of sale recited "a consideration of the sum of $1.00 and other valuable consideration to him paid by the defendant, Herman Marks," conveying his one-third interest in the Samuel Marks estate, and were prepared by Asher Marks and delivered to Rachel De Bow in the manner and for the purpose indicated, which were intended by Asher Marks not to be used for the purpose of accomplishing the father's intention, but fraudulently to secure such interest for himself, to the exclusion of the other five children, and to prevent the division of said interests between them, as intended by their father, and thereafter repudiated their several claims to share therein under said deeds and bill of sale; that these instruments were made not to Asher Marks, but to his nephew, Herman Marks, with whom he had arranged to accept them and hold the naked legal title to the property therein in trust for the heirs of Zulkind Krotki in equal shares and proportions, to all of which Herman Marks had assented and agreed; that said deeds and bill of sale were received by Asher Marks on December 26, 1895, and duly filed and recorded, remaining in his possession and custody until his death, August 31, 1899; that Asher Marks left a will by which, with the exception of some small legacies, he bequeathed and demised all his estate to Herman Marks, naming him as his executor, which will, on September 30, 1899, was probated and letters testamentary issued to Herman Marks, whereupon he took all the property belonging to, or claimed by, the individual estate of Asher Marks into possession and custody as such executor, and still holds the same, the administration of which is still pending; that at the time of the execution of the deeds and bill of sale, Zulkind Krotki was 92 years old and mentally incompetent to execute the same, or properly to understand the purport thereof, all of which Asher Marks had knowledge and notice, together with full knowledge and notice of the manner in which it was intended the estate should be distributed; that Zulkind Krotki died intestate without having made, or attempted to make, any other disposition of his property than as stated; that defendant Herman Marks now asserts and claims that, under and by virtue of said deeds and bill of sale, he is the absolute owner of, and entitled to receive, the whole of the one-third interest of Zulkind Krotki in the estate of Samuel Marks, deceased, for his own sole use and benefit; that the deeds and bill of sale executed and delivered by Zulkind Krotki were without consideration from Asher Marks or Herman Marks, all of which at all times Herman Marks had full knowledge and notice, including the intention and purpose of Asher Marks to defraud the other heirs of Zulkind Krotki.

The complaint concludes with the prayer: "Wherefore the plaintiffs pray that said deed and said bill of sale from said Zulkind Krotki to the defendant Herman Marks, and each of them, may be declared and decreed inoperative, null, and void, and that the plaintiffs Rachel De Bow, Sura Hartbrod Meier Marks, Adolph Marks, and the defendant Saul Marks be declared and decreed to be the owners of...