Graber v. Boswell

BENSON, J. The history of this case presents an unfortunate situation. Thomas F. Graber, the payee named in the note and mortgage, was a lawyer, having his offices in Oakland, California. After the final settlement and distribution of the Boswell estate, and [73] after all of the transactions involved in the present litigation, he died, and the plaintiff, being his widow, succeeded to his interests. She evidently knew very little of her husband’s business affairs prior to his death, and there is no one else who can supply the information. If the defendant ever kept any connected record of her financial transactions, it is not before us. Thomas F. Graber apparently left no detailed record of his financial dealings with Mrs. Boswell, other than an account book which was found among his effects in his office, after his decease. Our investigation of the facts then, is confined to the records of the County Court, in the matter of the estate of B. D. Boswell, deceased, the book accounts and canceled checks of Thomas F. Graber, deceased, and the parol testimony of Mrs. Boswell. After a careful investigation of the entire record, we are impressed with the fact that there is no evidence of any conscious bad faith upon the part of any of the parties hereto, or of any desire to deal otherwise than in perfect honesty and fairness. 1. Prior to his death, which occurred on May 19, 1907, B. D. Boswell owned certain lands in Douglas County, Oregon, known as Boswell Springs, whereon he conducted a hotel which was to some extent popular by reason of the reputed medicinal value of the mineral springs situated upon the premises. For several years prior to May 19,1907, Thomas F. Graber, a practicing attorney, of Oakland, California, had been a close personal friend and the legal adviser of Captain Boswell, and the latter, in his last will and testament had nominated Graber to be the executor thereof, without exacting any bond for the faithful performance of. the duties involved therein. Owing to the fact of his being a resident of another state Graber could not [74] qualify as such executor, and the widow and sole legatee, Emma E. Boswell, received letters testamentary as administratrix, with the will annexed, and Graber was retained by her as' her legal adviser. It was soon discovered that while the claims against the estate were considerable, the only ready money amounted to no more than $108. After her husband’s death, Mrs. Boswell continued to conduct the hotel with some success until the summer of 1908, when the buildings were destroyed by fire. Thereafter, Graber suggested to Mrs. Boswell, who in the meanwhile was living in Oakland, California, that she would need money to meet the claims against the estate, as well as for her personal requirements, that she should execute to him a note and mortgage for $2,000, upon the real estate, out of which claims would be paid, and money provided for her maintenance. This was done on October 22, 1908. Subsequently, a portion of the land was released from the lien of the mortgage, and sold for the sum of $2,000. On September 1, 1909, Graber mailed to Mrs. Boswell an itemized statement of the fund thus acquired, from which it appears that after paying the principal and accrued interest on a nóte to the State Land Board, together with taxes thereon, and certain obligations of Mrs. Boswell’s, there was a balance of $578.30, which he paid her by check. This statement disposes satisfactorily of any contention that this fund was applied to the payment of any other claims of Graber against Mrs. Boswell, and brings us to the definite conclusion that any other advances made to her or in her behalf were directly chargeable to the fund provided by the note and mortgage which are the subject of this suit. These items were kept by Graber, in a separate and distinct account in his day75 book, and consist, first, of an item of $976.64, for claims against the Boswell estate, which had been paid by him. The correctness of this item is disputed by Mrs. Boswell, who testifies that of the $250 which had been paid for a metallic casket for the remains of the deceased, Mr. Graber paid only $83.40. An examination of the vouchers filed with the final account discloses that the claim of the undertaker shows three credits of $50 each, “by check,” and credits for poultry and eggs, and a cash payment of $10, all at dates while Mrs. Boswell was conducting the hotel and sanitarium. The only voucher filed by Graber, in this connection, is for the balance of $83.40, and we are driven to the conclusion that plaintiff has not established her right to a credit of more than $83.40 thereon, by a preponderance of the evidence. 2. Another item is that for exhuming and transporting the remains of Captain Boswell to San Francisco for interment at the Presidio. This item is set out in the final account as being $50' and Mr. Graber filed a voucher therefor in that amount. But we also find him making an additional charge of $111 therefor, in his personal account against Mrs. Boswell, who insists that even the fifty-dollar charge is excessive. We think the item of $111 should be eliminated. The remaining items going to make up the consideration of the note sued upon, consist of a number of sums of money advanced to defendant at various times, certain bills of hers paid by him, and the sum of $500, which constitutes his charge for legal services, and $75 as traveling expenses necessarily incurred in the same connection. We are satisfied that these items are cor-I rect and reasonable, and should be allowed. [76] Making the deductions indicated above, the amount of the decree will be reduced from $3,364.44 to $2,934.83, with which modification the decree of the trial court is affirmed without costs to either party in this court. Modified. McBride, C. J., and Burnett and Harris, JJ., concur.