Hess v. Seeger

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: GILLETTE
• Citation: Hess v. Seeger, 55 Or.App. 746, 641 P.2d 23 (Or. App. 1982)
• Decision Date: 23 March 1982
• Docket Number: No. 25074,No. 24585,24585,25074
• Parties: Henry L. HESS, Jr. and Raymond L. Hess, Madeline M. Hess, as Personal Representative of the estate of Henry L. Hess, Sr., Leland F. Hess, and Douglas S. Hess, Appellants, v. Reinhold SEEGER, Bertha C. Seeger and Kinzua Corporation, Respondents. Bertha C. SEEGER, Respondent-Cross-Respondent, v. Henry L. HESS, Jr., Raymond L. Hess, Madeline M. Hess, Leland F. Hess, and Douglas S. Hess, Appellants-Cross-Respondents, William Pedro, Mary Ann Robinson, and Delbert Pedro, Respondents-Cross-Appellants, Leland Moore, as Personal Representative of the estate of Elizabeth Underhill, Rita Clark, also all other parties or persons unknown claiming any right, title, estate, lien or interest in the real property described in the complaint herein, Respondents, and Delbert PEDRO, Respondent-Cross-Appellant v. Henry L. HESS, Jr., Raymond L. Hess, Madeline M. Hess, as successors in interest of the estate of Henry L. Hess, Sr., Leland F. Hess and Douglas S. Hess, Appellants-Cross-Respondents. ; CA 16032,

Page 23

641 P.2d 23

55 Or.App. 746

Henry L. HESS, Jr. and Raymond L. Hess, Madeline M. Hess, as

Personal Representative of the estate of Henry L.

Hess, Sr., Leland F. Hess, and Douglas

S. Hess, Appellants, v. Reinhold SEEGER, Bertha C. Seeger and Kinzua Corporation,

Respondents.

Bertha C. SEEGER, Respondent-Cross-Respondent, v. Henry L. HESS, Jr., Raymond L. Hess, Madeline M. Hess, Leland F. Hess, and Douglas S. Hess,

Appellants-Cross-Respondents,

William Pedro, Mary Ann Robinson, and Delbert Pedro,

Respondents-Cross-Appellants,

Leland Moore, as Personal Representative of the estate of

Elizabeth Underhill, Rita Clark, also all other parties or

persons unknown claiming any right, title, estate, lien or

interest in the real property described in the complaint

herein, Respondents, and Delbert PEDRO, Respondent-Cross-Appellant v. Henry L. HESS, Jr., Raymond L. Hess, Madeline M. Hess, as

successors in interest of the estate of Henry L.

Hess, Sr., Leland F. Hess and Douglas S.

Hess, Appellants-Cross-Respondents.

No. 24585; CA 16032, No. 25074.

Court of Appeals of Oregon.

Argued and Submitted March 11, 1981.

Decided Feb. 2, 1982.

Reconsideration March 23, 1982.

Wendell Gronso, Burns, argued the cause and filed the briefs for appellants-cross-respondents.

Michael D. Kennedy, Portland, argued the cause for respondent-cross-appellant, Delbert Pedro. With him on the briefs was Kennedy, Bowles, Towsley & Soriano, Portland.

R. L. Marceau, Bend, argued the cause for respondents and respondent-cross-respondent Seeger. With him on the brief was James D. Noteboom, Bend.

Alex Byler, Pendleton, filed the brief for respondent Kinzua Corp.

Paul D. Schultz, Oregon City, argued the cause for respondents-cross-appellants, William Pedro and Mary Ann Robinson. With him on the brief was Hibbard, Caldwell, Canning, Bowerman & Schultz, Portland.

R. T. Gooding, LaGrande, argued the cause for respondent Rita Clark. On the brief was Phillip A. Mendiguren, La Grande.

R. J. Seeger, Hermiston, waived appearance for respondent Leland Moore, as personal representative of the estate of Elizabeth Underhill, deceased.

Before GILLETTE, P. J., and RICHARDSON, and ROBERTS, JJ.

GILLETTE, Presiding Judge.

This appeal concerns the respective interests of the parties in certain land located in eastern Oregon. The land in question was originally owned by Joseph and Rita Silva Vey. All the parties, except the Hesses and Kinzua Corporation, are lineal descendants of the Veys. The Hesses acquired an interest in the Vey estate by virtue of an employment contract in which they agreed to perform legal services for Delbert Pedro, one of the Vey's descendants, in exchange for a percentage of his interest in the Vey estate. ¹ Kinzua Corporation's interest is derived from a timber sale contract between it and Bertha Seeger, another descendant of the Veys.

The present case began as a trespass action brought by the Hesses against the Seegers and Kinzua Corporation. The complaint alleged that the Hesses and Bertha Seeger were tenants in common of certain of the property under dispute here and sought damages for timber removed from that land pursuant to a contract between Bertha Seeger and Kinzua. In her answer, Bertha Seeger claimed that the Hesses did not have an interest in the subject land and sought a decree quieting title in herself. Subsequently, Bertha Seeger brought a quiet title action naming as defendants all of the parties claiming an interest in the Vey estate. Delbert Pedro, one of the defendants in the Seeger lawsuit, brought a cross-claim against the Hesses, also defendants in the quiet title action, seeking to have the assignment and deeds he had given to them as a fee for their legal services set aside on the ground that the Hesses did not complete their employment contract with him.

The suits were consolidated for trial. Separate hearings were held to determine the parties' respective interests in the Vey estate, to determine if the Pedro-Hess assignment and deeds should be set aside and to determine the amount, if any, Delbert Pedro owed the Hesses for legal services. The trial court quieted title to the land in dispute in Bertha Seeger's favor, ordered the assignment and deeds given by Delbert to the Hesses cancelled and annulled and awarded the Hesses a judgment against Delbert Pedro for $37,500, less money received, for legal services rendered. Because the issue of title was decided adversely to the Hesses, their trespass claim did not have to be decided. The Hesses and Delbert Pedro appeal from all portions of the trial court decree. William Pedro and Mary Ann Robinson, who are also lineal descendants of the Veys, appeal from that portion of the decree quieting title as claimed by Bertha Seeger. We affirm.

TITLE TO THE VEY LANDS

Examining each matter separately, as did the trial court, we turn first to a determination of the parties' respective interests in the Vey estate. Before setting out the various claims raised, it is necessary to examine the history of these parties and the land in dispute.

a. The parties and the premises

Joseph and Rita Silva Vey were husband and wife. In 1934 they executed mutual wills. Joseph died in 1936 and Rita died in 1939. Each will provided that the three Vey daughters, Mary Pedro (later January), Rose Monese and Elizabeth Underhill, should each have a life estate in an undivided one-third of the testator's real property. The children of each Vey daughter were given a remainder interest in the Vey property contingent upon their surviving their mother, i.e., the children of Mary January were to receive an undivided one-third interest, the children of Rose Monese were to receive an undivided one-third interest, and the children of Elizabeth Underhill were to receive an undivided one-third interest. In the event that any of the daughters died without surviving issue, the prospective share of that daughter's issue would pass to the issue of the other daughters. The pertinent portion of the will read as follows:

"Subject to the provisions of paragraphs III, IV, V, and VI of this will, I give and devise to each of my three daughters, Mary M. Pedro, Rose Monese, and Elizabeth Underhill, a life estate for the term of her natural life, in and to an undivided one-third of the real property mentioned in paragraph V of this will.

"Subject to the provisions hereinabove contained in this will, I give and devise to such of the children of my daughter, Mary M. Pedro, as shall survive her, an undivided one-third interest in and to the real property mentioned in paragraph V of this will; to such of the children of my daughter, Rose Monese, as shall survive her, an undivided one-third interest in and to the real property mentioned in paragraph V of this will; and to such of the children of my daughter, Elizabeth Underhill, as shall survive her, an undivided one-third interest in and to the real property mentioned in paragraph V of this will, the descendants of any deceased daughter to take by right of representation, but if any of my said three daughters shall die without issue surviving them, then the property herein devised to such issue shall descend to my other grandchildren by right of representation."

The devise to Mary Pedro (January) and her children was conditioned on repayment by them to the testator's estate, or to those entitled to share in the estate, of a sum equal to an amount which had been advanced to Mary by her parents plus the amount of a judgment rendered in the Veys' favor against Mary. ² Each will read as follows in this respect:

"My daughter, Mary M. Pedro, is at this time indebted to me * * * in a large sum of money now evidenced by judgment of the Circuit Court of Umatilla County, Oregon, and I direct that all bequests and devises herein made to the said Mary M. Pedro and her children, shall be subject to the repayment to the estate or to those entitled to share in my estate under this will, of the full amount of such judgment remaining unpaid at the time of my death, and an additional sum of $6,000.00, and that the said Mary M. Pedro, and her children, shall not be entitled to any benefits under this, my last will and testament, until the amounts in this paragraph mentioned have been repaid by the said Mary M. Pedro or her children from income or property which she would receive under this will, or otherwise, it being my intention that the amount of said judgment, plus the sum of $6,000.00, shall be considered as an advancement to the said Mary M. Pedro to be repaid by her, or from her share of my estate.

In 1940, Mary Pedro, by then remarried and known as Mary January, filed a partition suit in Umatilla County Circuit Court seeking a partition of all the Vey lands. All the lineal descendants of the Veys were parties to the 1940 proceeding, with one exception: Delbert Pedro, Mary January's grandchild, was not named as a party to the partition suit, although he was living at the time. The relationship of the Vey descendants is as follows:

                    JOSEPH VEY AND RITA VEY
                                    ------ --- --- ---- ---
                           /                        /            /
                Mary Pedro January             Rose Monese  Elizabeth Underhill
                ---- ----- -------             ---- ------  --------- ---------
                    /          /       /           /                /
                William    Mary Ann   Joseph       Bertha      Rita Hazelwood
                Pedro      Robinson   Pedro        Seeger      Clark
                                       /
                                      Delbert
                                      Pedro
                

The partition decree was entered in 1941. The Vey property was divided into three tracts. Approximately 10,000 acres were set off for Mary January and her children (the January tract); Rose Monese and her children received approximately 21,000 acres (the Monese tract); and Elizabeth Underhill and her children received 20,000 acres (the Underhill tract). In making the division, the debt owed by Mary January to her parents was taken...