Dickerson v. Murfield
| Decision Date | 23 March 1948 |
| Citation | 191 P.2d 380,183 Or. 149 |
| Parties | DICKERSON et al. v. MURFIELD et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Frank J. Lonergan Judge.
Suit by H. M. Dickerson, Laurette M. Dickerson, his wife, and others against Ilo D. Murfield and another, to enforce an agreement for division of property in equal parts to the four children of Melissa Dickerson, now deceased. From portion of the decree favoring defendants, the plaintiffs appeal.
Affirmed as modified.
Robert R. Rankin, of Portland, for appellants.
Nicholas Jaureguy, of Portland (Cake, Jaureguy & Tooze, of Portland on the brief), for respondents.
Before ROSSMAN, C.J., and LUSK, BELT, KELLY, BAILEY and BRAND, JJ.
This is a second appeal. In 1942 the plaintiffs, H. M. Dickerson and Rue Fern McFarland, who are the children of Melissa Dickerson and her second husband, Robert F. Dickerson, brought this suit against the defendants, Ilo D. Murfield, as executor of the estate of Melissa Dickerson, Ilo D. Murfield, personally and Ernest C. Murfield, the defendants being the children of Melissa Dickerson and her first husband, Eli Murfield.
In the ensuing paragraph we will summarize the allegations of the original complaint which were in substance as follows:
Robert F. Dickerson died intestate on the 17th day of April, 1925, the sole heirs being his widow, Melissa, and the plaintiffs. The estate was administered, the plaintiff, H. M. Dickerson being the executor. In January, 1926, an agreement was made between the plaintiffs and their mother, Melissa Dickerson, by the terms of which the plaintiffs were to transfer to Melissa Dickerson 'all of their interests as heirs of the said Robert F. Dickerson', in consideration for which Melissa Dickerson 'agreed to hold all of said property, together with all of her other property, and upon her death to divide the same equally between her four children', plaintiffs and defendants herein. The plaintiffs performed their part of the agreement and the agreement was also approved by the defendants. Pursuant to the agreement, in June, 1926, Melissa Dickerson executed a will in conformity with the provisions of the agreement. Thereafter Melissa Dickerson violated the agreement during her lifetime by executing a second will inconsistent with the terms of the agreement and conveying her residence property in Portland to the defendants. Thereafter, Melissa Dickerson died. The second will was admitted to probate and her son, the defendant, Ilo D. Murfield, was appointed executor of her estate. The prayer of the original complaint was that her second will be declared void and that her first will be declared to be her last will, that the deed to the defendants be declared void, and for such other relief as may be equitable.
In addition to certain admissions and denials, the defendants affirmatively alleged that the plaintiffs had taken possession of certain personal property bequeathed to them by the second will of Melissa Dickerson, and that by reason thereof they had waived their rights to object to the probate of the second will. This defense was held insufficient on the first appeal and need not be further considered.
As a second affirmative defense to the original complaint the defendants alleged that Robert F. Dickerson had been the owner of certain described real property in Oklahoma and had expressed the desire that after his death, said property should be equally divided among the plaintiffs and defendants. It is further alleged that after the death of Robert F. Dickerson, the Oklahoma property was deeded to the plaintiff, H. M. Dickerson, who, in consideration thereof, executed certain trust deeds, acknowledging that he held the property in trust for the use of his mother, Melissa Dickerson, during her lifetime, and upon her death to be conveyed one-fourth to each of the children of Melissa, that is, to the two plaintiffs, and two defendants, share and share alike. The answer alleged that the plaintiff, H. M. Dickerson, had repudiated the trust. The trial court struck the affirmative answer of the defendants concerning the Oklahoma land, but at the trial, evidence in support of the alleged trust in the Oklahoma land was offered and received for the purpose of showing that the plaintiffs should be barred from any recovery because they had failed to do equity or to come into equity with clean hands.
After trial of the issues, the circuit court found that an agreement had been made between Melissa Dickerson and the plaintiffs, substantially as alleged in the complaint, whereby Melissa agreed to hold all of her property for the four children, share and share alike, and to divide it equally upon her death. It found that the alleged agreement had been performed by the plaintiffs, and that Melissa Dickerson, pursuant to her agreement, made a will dividing all of her property four ways. The court also found, as alleged by the plaintiffs, that thereafter, Melissa violated her agreement by making a new and inconsistent will and by conveying her residence property to the defendants. The trial court further found that the agreement between Melissa and the plaintiffs to hold, and upon death to distribute the property four ways, was made for the purpose of complying with an earlier agreement between Melissa and her husband, Robert F. Dickerson, which latter agreement provided that upon the death of Robert F. Dickerson, all property left by him should go to Melissa for life, and upon her death, all said property, together with all property owned by Melissa Dickerson at the time of her death should be divided equally four ways. The court also found, however, that pursuant to the agreement between Melissa and Robert F. Dickerson, the Oklahoma property was transferred to the plaintiff, H. M. Dickerson, who executed a declaration of trust wherein he agreed to pay the income from the Oklahoma property to his mother, Melissa, during her lifetime, and thereafter to divide the property four ways. The court further found that thereafter, the plaintiff, H. M. Dickerson, encouraged by the plaintiff, Rue Fern McFarland, repudiated the trust in the Oklahoma land, and it therefore concluded as a matter of law that the plaintiffs having refused to do equity were not entitled to any relief. Pursuant to these findings, the trial court entered a decree dismissing plaintiffs' complaint and upholding the second will. The decree, however, made no disposition of the Oklahoma property, apparently because of the fact that there was no pleading to support a decree concerning that property.
This court, on appeal, held that the foregoing findings of the trial court were supported by a preponderance of the evidence, except for the finding that Rue Fern McFarland was involved in the inequitable conduct of her brother, H. M. Dickerson. Thus, upon the appeal, this court held in substance that all of the property in controversy, including the Oklahoma land, was subject to a trust of which the four children of Melissa Dickerson were equal beneficiaries. However, we held that the inequitable conduct of H. M. Dickerson in repudiating the trust as to the Oklahoma land should not bar the plaintiff, Rue Fern McFarland from the enforcement of any rights that she might enjoy, and should not bar H. M. Dickerson from any of his rights under the trust if he should purge himself from his inconscionable conscionable conduct by reframing the pleadings in such a way that the court might act upon the Oklahoma property as well as upon the other property. We said: 'From the record before us now, which, of course, is the same as that which was considered by the learned trial court, it appears that the contract or agreement, alleged in plaintiffs' complaint as existing between the parties hereto and their mother was but an amplification or modification of the earlier arrangement and agreement between Robert F. Dickerson and his wife Melissa Dickerson, assented to, ratified and confirmed by the parties hereto.'
We observed that there was no pleading on which the distribution of the Oklahoma property could be based, and we pointed out that there was a defect of parties in that Bruce R. McFarland, a devisee of Melissa Dickerson under the second will had not been made a party to the suit, and we said: 'This * * * requires an order that said Bruce R. McFarland be made such a party to the end that he may have his day in court.' Dickerson v. Murfield, 173 Or. 662, 147 P.2d 194, 199.
The cause was sent back to the circuit court for further trial with leave to amend the pleadings, introduce new evidence, if any, and to add Bruce R. McFarland as a party.
To continue reading
Request your trial