In re Lucke's Estate

• Decision Date: 23 April 1912
• Citation: 61 Or. 483,123 P. 46
• Parties: In re LUCKE'S ESTATE. v. ANDREW. CONSOR
• Court: Oregon Supreme Court

123 P. 46

61 Or. 483

In re LUCKE'S ESTATE.

CONSOR v. ANDREW.

Supreme Court of Oregon

April 23, 1912

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Proceeding by Herbert P. Consor against John Andrew, administrator of the estate of George H. Lucke, deceased. From a judgment for claimant, defendant appeals. Reversed, and new trial ordered.

This is a proceeding to establish a demand against a decedent's estate. George H. Lucke died intestate in Multnomah county September 4, 1909, and letters of administration upon the estate were issued to John Andrew, who duly qualified for the trust. Herbert P. Consor exhibited a verified claim against the estate in the sum of $1,620, with interest, for money asserted to have been loaned to the deceased, but the demand having been rejected by the administrator, was presented to the county court of that county, which also disallowed it. From the latter determination an appeal was taken to the circuit court for that county where the cause was tried de novo, resulting in a verdict and judgment for the claimant in the amount demanded, and the administrator appeals to this court.

F.W Mulkey, of Portland (Allen & Mulkey and W.A. Johnson, of Portland, on the brief), for appellant.

O.J Kraemer, of Portland (Chamberlain, Thomas & Kraemer and L.W Humphreys, all of Portland, on the brief), for respondent.

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

The testimony shows that the claimant's wife was a niece of George H. Lucke, and, though she lived with him and his wife 18 years prior to her marriage, she was never adopted by them. A witness, speaking of the intimacy existing between the persons named, said: "Mr. and Mrs. Lucke considered Mr. and Mrs. Herbert P. Consor just about the same as though they were their own children." In consequence of illness, Mrs. Consor, returned, March 8, 1899, with her daughter Jessie H., then nearly six years old, to the home of Mr. and Mrs. Lucke, where they resided until September 25 1900, when Mrs. Consor died, but the daughter remained until October 1, 1907, when she went to live with her father in Chicago. Lucke had been a soldier and received a small pension, which settled monthly allowance and trifling sums obtained from the sale of fruit raised on a lot in Portland owned by Mrs. Lucke constituted their income. Consor testified that in October, 1900, in a conversation with Mr. and Mrs. Lucke, he agreed to pay them $15 a month for the board, lodging, etc., of his daughter, and also to advance the further sum of $20 monthly, in consideration of which latter payment they stipulated either to reimburse him or upon their death to leave to him their property, consisting of a house and lot, known as No. 1125 East Taylor street, Portland. About three weeks thereafter, or from January 4, 1901, to and including September 3, 1907, or a little less than a month prior to his daughter's departure to Chicago, Consor sent from that city monthly to Lucke a post office money order for $35. The statute declares that no claim that has been rejected by the representative of a decedent's estate "shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant." L.O.L. § 1241. Complying with this requirement, there was offered in evidence the deposition of Jessie H. Consor wherein it was stated that after the death of Mrs. Lucke, which occurred in February, 1907, Mr. Lucke, having received a post office order from her father for $35, in answer to her inquiry as to why the money was sent, was informed that "it was for our living expenses." As further obedience to the legal mandate referred to, there were offered in evidence duplicate receipts for money orders issued by sub post offices in Chicago for $35 each, of various dates and numbers, and also letters written to Consor by Mr. Lucke or his wife, usually signed "Papa" or "Mother" acknowledging the receipt "of the blue paper," "money order," "remittance," "enclosure," "usual order," etc., without specifying the sum received, except in a few instances. One of these letters written by Mrs. Lucke April 9, 1901, informs Consor that she had taken an invalid lady to board. Another letter written May 16, 1901, by her to him contains the following statement: "I am in hope we can reduce your remittance if our boarder is a continued success." Lucke on May 23, 1901, wrote Consor in part as follows: "Yours of the 19th inst. & encd. two postal money orders, each for one hundred dollars, $200, came to hand this 3 o'clock P.M. Many thanks for your promptness. Yes there are only $300 to come yet and I can assure you that all will be spent judiciously & carefully & that to date we can say we own the most valuable of all properties within 3 miles around us, & after a while you will realize that this was a most lucky investment. Our Providence Group," referring to mining claims in Baker county, "is looming up, according to experts' opinion. Many a one would now like to be a part owner. *** As for your own share in this don't you worry. You need no money. You have done your share & I thank you for it & promise that you shall have your 1-3 interest, as it is, without another dollar on your part." Mrs. Lucke on June 16, 1901, wrote a letter from which the following excerpt is taken: "I hope in some way you will be fully repaid for your great kindness to us. If for no other reason than this, I trust the mines will be a success and thus prove a blessing to all of us"--referring to mines and mining claims in Baker county in which she and Consor held a joint interest. A letter written by her to him August 31, 1901, contains the following clause: "I suppose Papa spoke in his letter of the receipt of your remittance that we received early in August. We were busy with our sick boarder. Consequently I did not write. Many thanks all the same. Your kindness in this way enables us to keep Anna with us"--referring to a servant. A letter written by Lucke to Consor, September 5, 1901, from Annex, which is supposed to be near the mining claims, contains the following language: "Yesterday your welcome letter arrived with the usual remittance. Many, many thanks. We concluded on account of your kindness to reciprocate & as mother is sole owner of everything here she has made up her mind with me to fully compensate you & make out legal papers to secure your interest with us in case of our death." Whether the word "here," in the excerpt quoted, limited Mrs. Lucke's ownership to the property in Baker county, or extended the proprietorship to all her property in the ...