Lamb v. Lamb

HENSHAW, J.

Plaintiffs by their action sought to have decreed and enforced against the defendant an involuntary trust. From the judgment in their favor and from the order denying defendant’s motion for a new trial she appeals.

The complaint charged that Anna Slingerland in her lifetime owned some four hundred acres of land, with a small amount of stock and other personal property thereon. She was living upon this land with her married brother, Russell W. Lamb. She was the sister of plaintiff Alexander Lamb and the aunt of the other three plaintiffs, one of whom is the daughter of Russell W. Lamb. In addition to these relatives Anna Slingerland had another brother, Theodore Lamb, and a sistér, Sarah Donaldson. The defendant was the wife and is now the widow of Russell W. Lamb, and is the stepmother of the plaintiff Geneva Klinke. In February, 1906, Anna Slingerland- executed her will, bequeathing to plaintiffs Anna Buhlert and Charlotte Sharman the sum of five hundred dollars each, and to Geneva Klinke, daughter of Russell Lamb, of whom she was especially fond, the sum of two thousand dollars, and, after these legacies, devised and bequeathed the residue of her estate in equal shares to her brothers Alexander and Theodore and her sister Sarah. In September and October of the same year she made deeds of the land owned by her to her brother Russell, with whom she was living. The first deed attempted to convey 23.7 acres of the four hundred acre tract. The second deed conveyed all of the four hundred acre tract, excepting therefrom the 23.7 acres previously conveyed. At the time of the making of these conveyances Anna Slingerland, then of the age of seventy-three years, was extremely ill of a mortal affliction, which caused her death on the tenth day of the following November.

Very shortly after the death of Mrs. Slingerland, Russell Lamb wrote to his sister Sarah that the deceased sister had left her ranch for him to sell and divide the proceeds equally between her three brothers and her sister. This letter made

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no mention of the legacies in the will. Anna Slingerland’s will was probated and the executor brought his action on behalf of her estate to recover into the estate the lands so deeded to Russell. Russell contested this action and it resulted in a judgment in favor of the executor for the 23.7 acres, and in favor of Russell for the remainder of the tract. The executor moved for a new trial of the action so far as it awarded the remainder of the tract to Russell, and Russell in turn moved for a new trial against the award of 23.7 acres in favor of the estate. Thereupon, and while said motions were pending, Russell Lamb’s brother Theodore and his sister Sarah brought their action to have it declared that he held the land in trust for the sister and brothers of Anna Slingerland, as in effect declared in .his letter. These plaintiffs took no part in this litigation because of the relations of great trust and confidence which existed between them and Russell Lamb, and because he frequently stated to them and assured them that he did not propose to keep the land, but did propose to and would sell it and carry out to the fullest extent the will of Anna Slingerland, and that if he was not able profitably to sell the lands during his lifetime he would so arrange it that they should be disposed of and the legacies paid to the parties at or after his death. For these reasons they did not join in the litigation and in the compromise which was therein effected. By that compromise Russell Lamb paid to his brother Theodore and to his sister Sarah a sum of money, and, upon so doing, was permitted to take, and did take, judgment in his favor upon all the issues in the action commenced by them. Still further, and as a part of the compromise, the executor of the estate of Anna Slingerland allowed Russell Lamb to take, and he did take, a judgment in his favor for the 23.7 acres which had been awarded to the estate. The method by which this was accomplished was that by consent that portion of the judgment adverse to him was set aside and a new trial granted and judgment in Russell Lamb’s favor thereupon immediately entered, and the motion of the executor for a new trial as to the remaining portion of the four hundred acres was denied and no appeal taken therefrom. As a further assurance of the good faith of Russell Lamb, he testified upon the trial of the action that he would never think of keeping all of said lands, but that it was his intention then