Elliott v. Mosgrove

• Decision Date: 01 May 1939
• Citation: 91 P.2d 852,162 Or. 507
• Parties: ELLIOTT <I>v.</I> MOSGROVE ET AL.
• Court: Oregon Supreme Court

162 Or. 507

91 P.2d 852

ELLIOTT

v. MOSGROVE ET AL.

Supreme Court of Oregon.

Argued at Pendleton May 1, 1939.

Affirmed June 20, 1939.

Rehearing denied September 19, 1939.

Bills and notes — Demand note

1. Where note required payment on day that it was dated, such note was payable upon demand.

Property — Situs

2. A chose in action generally acquires the situs of its owner.

Trusts — Courts — Jurisdiction

3. A court of Oregon was authorized to appoint plaintiff as trustee to succeed to duties of trustee under a trust instrument executed in Washington in connection with trust created by will admitted to probate in Washington, where, at time of plaintiff's appointment, all persons affected by trust, except beneficiaries, were residents of Oregon and had treated the Washington court as having no connection with trust fund, notwithstanding that note representing trust res remained in Washington.

Trusts — Trustee

4. Deceased's executrix did not accept duties as trustee of trust provided for in deceased's will where executrix had never performed any duty concerning trust estate.

Trusts — Trustee — Acceptance of duties

5. A person was deemed to have accepted office of a trustee where such person, after signing an instrument acknowledging receipt of note to be held in trust and expressly providing for the undertaking of certain trust duties, wrote in his personal account book that the trust had been transferred to him and made remittances to beneficiaries in accordance with requirements of trust and otherwise showed familiarity with and concern over trust, notwithstanding that note representing trust res was found among transferor's effects after deaths of transferor and trustee.

Trusts — Trustee — Duties

6. The mere fact that duties were imposed upon a trustee by agreement when such duties should have been imposed by an order of court did not make the trustee any less responsible for his conduct of the trust estate's affairs.

Trusts — Trustee — Duties

7. A person who assumes the duties of a trustee and proceeds with their administration is as liable for their improper conduct as if he had been regularly appointed.

Trusts — Trustee — Accounting

8. A trustee of an implied trust may be compelled to render an accounting.

Evidence — Presumptions

9. A trustee was entitled to presumption that he respected his trust duties.

Trusts — Assets

10. A bank account of a deceased trustee was intended to be an asset of the trust where such account was held in name of deceased as trustee and evidence showed that deceased had established the account to separate money derived from different sources and had written a letter indicating an intent to open a trustee account for purposes of creating a fund which would ultimately retire a note which was the trust res.

Executors and administrators — Trusts — Trustee

11. In proceedings by the successor of a deceased trustee against trustee's heirs to establish a claim against trustee's estate, denying defendants' motion for nonsuit was proper where complaint alleged that note, which had been the trust res, had been paid in full to trustee and evidence showed that deceased trustee had intended a certain bank account to be an asset of the trust.

Trusts — Equity

12. Generally, the remedies of the beneficiary against the trustee are exclusively equitable.

Trusts — Breach of duty

13. An action may be maintained against a trustee who breaches a duty requiring him immediately and unconditionally to pay money or deliver a chattel to the beneficiary.

Trusts — Equity

14. A cause of action against a trustee based upon negligent administration is triable in a court of equity.

Pleading — Complaint — Amendment

15. In proceedings by successor of a deceased trustee against trustee's heirs to establish claim against trustee's estate, permitting plaintiff to amend complaint by alleging that deceased could have collected a note by exercise of due diligence did not prejudice defendants by depriving them of right to ask for jury, where substantially all of the evidence had been admitted before amendment and especially where defendants had offered evidence to prove that nothing had been lost to trust estate through deceased's failure to enforce payment of note and case had been continued after allowance

of amendment to permit defendants to introduce additional testimony, if desired, on phase of case covered by amendment.

Pleading — Amendments

16. The farther that a case has proceeded, the more reluctant the courts are to permit an amendment.

Pleading — Amendments

17. The power to allow amendments reposes largely in discretion of trial court.

Pleading — Amendments

18. Liberality in the allowance of amendments is to be favored, especially when it does not deprive the adversary of full opportunity to offer his evidence.

Executors and administrators — Claims against estate

19. The statute concerning the presentment of claims to an executor or administrator does not prescribe the particularity with which the claimant must set forth the facts out of which his claim arose.

Executors and administrators — Claims against estate

20. Although a verified claim against the estate of a deceased takes the place of a complaint, the facts constituting the claim need not be stated with the degree of particularity required in a complaint filed in an action at law.

Executors and administrators — Claims against estate

21. The facts constituting a claim against an estate may be averred in general terms; and, if the facts show a subsisting liability in favor of claimant, the claim is sufficiently stated.

Executors and administrators — Claims against estate

22. The purpose which presentation of a written claim to an estate's representative is intended to serve is the best guide in determining sufficiency of claim.

Executors and administrators — Claims against estate

23. Claims against an estate are required to be presented in written form in order to enable estate's representative to pay such claims as he deems just, thereby obviating necessity of reducing all of them to judgment.

Executors and administrators — Claims — Particularity of statement

24. In order to enable an estate's representative to determine validity of a claim, such claim should express with sufficient particularity the circumstances out of which it arose.

Executors and administrators — Claims against estate

25. In determining sufficiency of a claim presented to an estate's representative, character of claim, the likelihood of there being others of substantially the same kind, and extent to which it is necessary to describe a claim of such character in order to identify it in the representative's mind are factors of importance.

Executors and administrators — Claims against estate

26. Ordinarily, language which distinguishes a claim against an estate from other claims of like kind and which states in general the facts upon which the claim is predicated is a sufficient description of the claim; substantial compliance with the statute's demands being sufficient.

Executors and administrators — Claims against estate

27. Where claim presented by plaintiff, a successor of a deceased trustee, to trustee's administratrix stated that deceased had accepted office of trustee by executing an instrument, a copy of which was attached to claim, and averred that plaintiff had been appointed as deceased's successor and that deceased had collected amount payable upon note, which had been trust res, and that deceased's estate was indebted to plaintiff as trustee in amount of note, such claim was sufficient to comply with statute concerning presentment of claims to an administratrix.

Trusts — Trustee — Skill required

28. In the administration of trust property, a trustee was under a duty to exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property.

Executors and administrators — Claims against estate

29. In proceedings by successor of a deceased trustee against trustee's heirs to establish claim against trustee's estate, a finding that a note, which had been trust res, could have been collected in full by deceased trustee through exercise of reasonable diligence was supported by evidence.

Limitation of actions — Negligent administration of trust

30. Defendants' objection that part of plaintiff's claim predicated upon negligent administration of a trust was barred by limitations was deemed waived where objection was not made by demurrer or answer, notwithstanding that amendment incorporating charge of negligent administration had been made after answer was filed when defendants did not ask for privilege of filing additional pleadings.

ON PETITION FOR REHEARING

Account — Pleading — Prayer

31. A prayer was reasonably susceptible to interpretation that plaintiff sought an accounting, though the term "accounting" was not directly used, where plaintiff could not have been awarded relief suggested by facts narrated in complaint unless an accounting was first had, and especially where prayer sought general relief.

Pleading — Prayer

32. The "prayer" is no part of the cause of suit or of action, and ordinarily a party is entitled against answering defendants to any relief warranted by the facts set up in his complaint, especially where plaintiff seeks general relief.

Pleading — Amendments

33. Under statute granting trial judges a discretionary power to permit amendments before cause is submitted provided the amendment "does not substantially change the cause of action," the term "cause of action" refers to a formal statement of operative facts showing a right in complainant, recognized by law, and a wrongful invasion thereof, actual or threatened.

Pleading — Amendments

34. Under statute granting trial judges a discretionary power to permit amendments before a cause is submitted, provided the amendment "does not substantially change the cause of action," the "cause of action" should be...