Riddle v. Isaacs

• Decision Date: 21 September 1920
• Parties: RIDDLE ET AL. v. ISAACS.
• Court: Oregon Supreme Court

192 P. 398

97 Or. 404

RIDDLE ET AL. v. ISAACS.

Supreme Court of Oregon

September 21, 1920

Department 1.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

Suit by Mamie E. Riddle and others against Charles W. Isaacs. General demurrer to complaint overruled, and from a decree dismissing the complaint, plaintiffs appeal. Affirmed.

The parties to this suit are some of the children of George W Isaacs, deceased, who made a will dated July 10, 1901, under which his estate has since been conducted, the second clause of which reads thus:

"I give and bequeath unto my wife, Mary A. Isaacs, my residence in the city of Medford, Oregon, for the period of her natural life. I also will and direct that she shall have, use and control during her natural life, all the rest and residue of my estate both real and personal; and she shall have the right to expend so much thereof as she may need for her own personal comfort and support, and the proper care of my estate, but shall not permanently dispose of any or give away any of the residue of my estate."

According to the admitted allegations of the complaint, Mary A. Isaacs widow of the testator, who was appointed executrix of the will by the terms thereof, without bonds, managed the estate for several years. That pleading states that on September 2 1915, the executrix filed what purported to be a final account, showing the receipt and expenditure of $16,555.73 received since the former accounting, September 10, 1908. It is said in general terms that the report was not that of the executrix, but was one prepared at the instance of the defendant. Wherein that account was erroneous or fraudulent is not stated. It is declared also by plaintiffs, in substance, that about January 1, 1908, the defendant, with intent to defraud the plaintiffs and other legatees and devisees under the will, persuaded the executrix to let him into the possession of a quarter section of land belonging to the estate, and to permit him to expend the money of the estate, to sell the crops and products raised upon the land and to retain the proceeds thereof; that he did all this without any right or license whatever, and during a long period of years has pursued that course in connection with the crops raised on the land; that he has never rendered any account or produced any vouchers to show for what purpose the money was expended; and that these amounts exceed the sum of $16,000. It is stated and admitted that certain lands of the estate have been partitioned among the children of the decedent. In addition to all this relating to the estate of the decedent, the plaintiffs make this averment:

"That the said defendant, Charles W. Isaacs, falsely and fraudulently represented to these plaintiffs that money was required to be expended in the raising of an orchard on said tract of land, falsely and fraudulently and unlawfully induced these plaintiffs to execute notes in favor of the Medford National Bank, which at this time, together with interest thereon, aggregate more than the sum of $4,300. That no part of said notes of $4,300 cr proceeds thereof ever came into the possession of these plaintiffs or any one of them, and that neither of these plaintiffs had any benefit whatever from the proceeds arising from said notes, but the entire proceeds of said notes went into the hands of Charles W. Isaacs, and have never at any time been accounted for."

Alleging that the defendant has no other property, except that which came to him by virtue of the partition, the plaintiffs pray that he be restrained from selling or mortgaging any of it, that upon the hearing of the case he be required to account to these plaintiffs for the money received by him, in which any of them or the estate of their deceased father shall have any right, title, or interest, and for other and further relief. A general demurrer to the complaint was overruled.

The relationship of the parties, the appointment of the mother widow of the decedent, to be executrix without bonds, and her administration of the estate to and including September 11, 1908, are admitted. The making of the account of September 2, 1915, is admitted, and it is alleged in the answer that this was a true and genuine account of the affairs of the estate. The making of the will is admitted. The conclusions alleged in the complaint as to the effect of the will are denied. The partition of the lands is likewise admitted. The other allegations of the complaint are denied. The...