Godfrey v. Howes

• Decision Date: 11 February 1919
• Citation: 91 Or. 98,178 P. 388
• Parties: GODFREY v. HOWES.
• Court: Oregon Supreme Court

178 P. 388

91 Or. 98

GODFREY v. HOWES.

Supreme Court of Oregon

February 11, 1919

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Viola M. Godfrey against Christina E. Howes, executrix of the last will and testament of Ensign E. Howes, deceased. From judgment for plaintiff, defendant appeals. Affirmed.

On November 30, 1914, the plaintiff, then and now a resident of New York, executed to Ensign E. Howes, then a resident of Portland, Or., a general power of attorney, by which, among other things, she authorized him to collect and receive in her name and as her act and deed any notes, mortgages, or other evidences of debt which were then or would thereafter become due and owing. On December 24, 1916, Howes died testate, and Christina E. Howes as his surviving widow was duly appointed and qualified as executrix of his estate.

The plaintiff, contending that Howes, acting under the power of attorney, had collected, received, and appropriated to his own use and benefit certain moneys which rightfully belonged to her, and for which he failed to account, made and presented verified proof of her claim to Christina E. Howes as such executrix. The claim was rejected, and the plaintiff brought this action to enforce payment, making all necessary allegations in her complaint, to which the defendant filed a general denial. A trial was had, and the jury returned a verdict against the defendant as executrix, for the full amount of plaintiff's claim upon the first cause of action, upon which judgment was entered, and from which defendant appeals.

E. L McDougal, of Portland (McDougal & McDougal, of Portland, on the brief), for appellant.

Wm. M Stone, of Oregon City (Stone & Moulton, of Oregon City, on the briefs), for respondent.

JOHNS J. (after stating the facts as above).

This opinion will be as brief as the court's instructions, to which neither party took an exception.

Defendant relies upon section 1241, L. O. L., which, among other things, provides that:

"No claim which shall have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant" --and contends that there is no "evidence other than the testimony of the claimant" that the deceased ever collected or received any money belonging to the plaintiff.

The...