[6] As to the second proposition, the portion of the instruction stricken out by the court was not sound in law. The defendant was charged in the information under section 470 of the Penal Code with the making, forging, and uttering of a false check. Either of said acts under said section constituted a crime, and hence the defendant's requested instruction to the jury to acquit the defendant if they should find that he made and forged said check, but did not utter the same, is unsound in law, and hence was properly stricken from said instruction by the trial court. [7] The appellant's next contention is that the trial court erred in refusing to give an instruction requested by him, wherein he undertook to have the court charge the jury that the information was defective, in failing to sufficiently charge the defendant with having made and forged the check in question with intent to defraud. The instruction asked was in substance and effect a demurrer to the information upon the ground of uncertainty. No demurrer was interposed by the defendant upon his arraignment, and we think a demurrer upon this ground comes too late when it appears for the first time embodied in an instruction to the jury. Besides, we are satisfied from a reading of the information that it is not subject to the criticism which the defendant had aimed at it, and hence that the instruction was properly refused. A similar instruction directed to the same objection to the information was also properly refused by the court. unless there clearly appears a manifest abuse of that discretion, or that the allowance, in view of time, talent, and character of service, is disproportionate or not equivalent to the service performed. 2. Guardian and ward 150 Assistance to guardian and cost thereof considered in fixing his compensation. The assistance to a guardian of brokers, accountants, and attorneys, and its cost to the estate, is to be taken into account in fixing his compensation. 3. Guardian and ward 150-Understanding before appointment not controlling on court in fixing guardian's compensation. Understanding of guardian, before consenting to assume duties, with those petitioning for his appointment, that he should have more than the ordinary compensation, did not create a legal obligation, the ward being incompetent, and the other petitioners without authority to bind his estate, and did not control the court's discretion, though it had a right to give some weight to the fact of such understanding. [8] As to the defendant's other instruc-ian tions, which the court refused to give, we find that their substance is embodied in the instructions which the court gave to the jury, and for that reason the duplication of instructions already substantially given was properly refused. Finding no error in this record, the judgment is affirmed. I concur: TYLER, P. J. In re PRINCE'S GUARDIANSHIP. Appeal of HAMMOND. Department 2. Appeal from Circuit Court, Multnomah County; George Tazwell, Judge. In the matter of the guardianship of Thomas Prince, an incompetent person. From an order fixing the compensation of the guardAfian, Winthrop Hammond, he appeals. firmed. Wallace McCamant, of Portland (McCamant & Thompson, of Portland, on the brief), for appellant. D. P. Price, of Portland (Rogers MacVeagh (Supreme Court of Oregon. Sept. 19, 1922.) and Teal, Minor & Winfree, all of Portland, 1. Guardian and ward 150, 161-Under statute, guardian's compensation in court's sound discretion, reviewable only for manifest abuse. on the brief), for respondents. C. M. Idleman, of Portland, for Dr. H. F. Ong. Under Or. L. § 1340, providing that a guardMCCOURT, J. This is an appeal by Winian shall have such compensation as the court in which his accounts are settled shall consider throp Hammond from an order of the circuit just and reasonable, the amount to be allowed court for Multnomah county, fixing his comis in the sound discretion of such court, and its pensation as guardian of the estate of Thomdetermination will not be disturbed on appeal, as Prince, a person incapable of conducting For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (209 P.) his own affairs. The guardian was appointed | money so advanced was to be repaid upon the January 3, 1918, and his trust terminated by the death of the ward February 3, 1920. [1] Section 1340, Or. L., provides: "Every guardian shall be allowed the amount of all his reasonable expenses incurred in the execution of his trust, and shall also have such compensation for his services as the court in which his accounts are settled shall consider just and reasonable." sale of the dwellings so constructed. The enterprise was conducted under the unincorporated firm name of Oregon Home Builders, Jeffrey being the active head thereof. The dwellings did not sell readily, and from its inception, the concern lost money. In May, 1917, Mr. Prince suffered a stroke of paralysis, in connection with which he was compelled to undergo a surgical operation, whereby he was confined in a hospital for several months. Jeffrey acquired a tract of land, and while Mr. Prince was convalescing the Oregon Home Builders erected a plant thereon for the manufacture of aeroJeffrey prevailed upon Mr. Prince The court allowed the guardian as compensation $25,000. He made a claim for $100,000. Under a statute such as that above set forth, the amount of compensation to be allowed a guardian is within the sound dis-planes. cretion of the court in which the guardian's to advance the funds required to construct accounts are settled, and the determination the plant, and also to agree to advance the of the court in fixing the allowance will not money necessary for the weekly pay roll of be disturbed on appeal, unless it clearly ap- those employed in the manufacture of aeropears that there has been a manifest abuse planes, amounting to about $1,000 per week. of that discretion, or that the amount al- By January 1, 1918, Mr. Prince had adlowed, in view of the time, talent, and char-vanced in cash to the Oregon Home Builders acter of service employed in the management | about $157,000, and in addition had incurred of the trust estate, is disproportionate or not a number of large obligations, including that equivalent to the services performed. 21 Cyc. 173; In re McCullough's Estate, 31 Or. 86, 94, 49 Pac. 886; In re Assignment of Bank of Oregon, 32 Or. 84, 90, 51 Pac. 81; In re Assignment of Woodall, 33 Or. 382, 384, 54 Pac. 209. At the time the guardian was appointed to administer his affairs, Thomas Prince was 77 years of age. While in his prime he had been a successful manufacturer in Worcester, Mass., where he established an industry, operated and conducted under the name of the Reed-Prince Manufacturing Company, in which he at all times owned and held a large interest, yielding at the time of the guardianship dividends of more than $5,000 per month. Mr. Prince retired from the active management of his manufacturing business before 1898 and intrusted the same to young er men, and at the time of the appointment of the guardian, William L. Ames, a nephew, was acting as trustee of those interests for Mr. Prince under an appointment theretofore made by the latter. of the pay roll above mentioned. In part payment of the funds so advanced, Jeffrey, in the name of the Oregon Home Builders, had conveyed to Mr. Prince, at excessive prices, 19 or more dwelling houses in Portland, Or., with the land upon which they were situated and a tract of acreage in Clackamas county; also eight sales contracts for the sale of dwelling houses. All of the properties so transferred were incumbered, and together they represented equities having a value of about $50,000. Mr. Prince had been compelled to borrow large sums to meet the demands for money made by Jeffrey, to secure some of which he had placed mortgages upon his real property in Washington and Yamhill counties. Stanley Simmons, a favorite grandnephew of Mr. Prince, visited the latter in December, 1917, and discovered that his affairs had become badly involved, because of the large demands made upon his cash resources by Jeffrey, and also that Mr. Prince, in his enOn retiring from business, Thomas Prince feebled condition of body and mind, was incame to Oregon and interested himself in capable of administering the properties bewalnut culture in Yamhill county. He ac- longing to his estate, or of conducting his quired several pieces of valuable land in Yam-own affairs so as to stop further losses, hill and Washington counties, and invested whereupon it was decided, with the acquimoderate sums of money in several local en-escence of Mr. Prince, to place his affairs unterprises, such as a creamery company and der the management of some competent perfruit cannery. He also purchased a number son. Winthrop Hammond was an old acof small tracts of land jointly with other per-quaintance, in whom Mr. Prince had full consons, and advanced considerable sums of money to those associated with him in such purchases. In 1915 his faculties had become somewhat impaired by ill health and advanced age, in which condition he was induced by one O. K. Jeffrey to consent to finance the construction of dwelling houses situated upon lots in Portland, Or., which lots were acquired or controlled by Jeffrey. The fidence, and he desired that Hammond be intrusted with the management of his affairs. It was decided that the appointment of Hammond as guardian of the estate of Prince was the best method of bringing about that result. Accordingly, Mr. Prince, Harold Prince, his son, and Stanley Simmons joined in a petition for the appointment of Hammond as guardian, upon which petition the order appointing Hammond as such guard-proceeds of dividends, from the Eastern ian was made. The son, Harold Prince, had holdings of the ward. By means of sums little or no business ability. of money so received the guardian was en on. An appraisement of the estate disclosed as-abled to discharge the obligations of the sets of approximately $441,000, including real ward as they matured, and also to liberalproperty appraised at $333,641.15, and per-ly supply the personal wants of the ward. sonal property, consisting of tools, imple- During the administration of the estate, the ments, office furniture, live stock, corporate guardian received from the trustee of the stock, notes, accounts, and demands of vari- ward's Eastern holdings, over which he did ous kinds, appraised at $108,528.36. Much of not exercise any authority, $133,750. As the personal property was of a character above stated, these assets, belonging to the that cash could not be readily realized there- ward and located in Massachusetts, were adThe indebtedness of the estate was ap-ministered by a trustee. They represented a proximately $210,000. About $94,000 of this value in excess of $750,000. indebtedness consisted of mortgages, liens, The guardian determined, with the advice and taxes upon the real property of the es- and consent of the relatives of the ward, to tate. The ward had outstanding his unse- relieve the estate of the difficulties and excured promissory notes for $28,277.64. One penses of administering the numerous real note for $10,000 had been given a bank in properties belonging to the estate and conWorcester, Mass., and was then overdue. veyed to the ward by the Oregon Home Payment of this note was extended for a Builders, and steps were taken, shortly aft year or more. Some other notes and obliga-er the appointment of the guardian, to sell tions, including claims for mechanics' liens and dispose of the same. In furtherance of and taxes, were about to mature. There was that policy, the guardian disposed of all but included in this indebtedness an item of two or three of those properties for an ag$30,000, due to the government as income gregate consideration of $128,835.65, and sattax, which was readily adjusted by the guard-isfied incumbrances thereon of $65,534.77. ian by paying $6,600. There was also a The sale price was considerably less than claim of Dr. Ong for $12,500, for performing the price for which the properties had been a surgical operation upon the 'ward, which conveyed to the ward, but were only a litthe guardian settled without a great deal of tle less than the value placed thereon by controversy for $1,250. the appraisers. The guardian paid to brokers, for making the sales, a little more than $3,900. He received as the proceeds of the sales of personal property $51,336, and collected upon notes and accounts $20,046. With the funds so received, the guardian discharged all of the indebtedness of the ward, except a mortgage for $8,500, which incumbered a tract of land in Clackamas county, known as the Oregon City farm, that had been conveyed to the ward by Oregon Home Builders, at a price of $38,500. This tract of land probably is not worth more than the mortgage against it. The connection of the ward with the aeroplane plant above mentioned was the most serious matter that confronted the guardian upon assuming his trust. Relief was obtained by closing down the plant at once, thereby terminating the necessity of meeting a pay roll. A corporation was formed, known as the Broadway Investment Company. Two-thirds of the capital stock of this corporation was issued to the Prince estate and one-third to Jeffrey. The stock of the latter was placed in control of the guardian, to secure the estate for sums it would be required to advance to satisfy obligations against the plant. The World War was in progress at the time, and shortly thereafter the plant was sold for $40,000; the purchaser assuming an incumbrance of $20,000 against the property thereof. In this manner the estate was relieved of the obligation of the pay roll, the incumbrance against the property, and besides recovered $40,000 of the moneys advanced at the solicitation of Jeffrey. The guardian expended more than $65,000 in providing for the personal comfort and needs of the ward. In addition to looking after, caring for, and investigating the value of the numerous properties of the estate, the guardian, outside the strict limits of his duty, gave close attention to the personal wants of the ward, in an effort to relieve him, as far as possible, of worry and trouble, and to supply him with all the comforts, as well as many of the luxuries, to which his Most of the houses that had been conveyed wealth entitled him. The ward was not to the ward by the Oregon Home Builders wholly incompetent, and while in Oregon were occupied by tenants at the time the made daily visits to the guardian, at the guardian took over the management of the store conducted by the latter, where he was estate. From these and obligations due the able to give the guardian much valuable inestate the guardian received a considerable formation concerning his affairs. Thereby income. Anong the assets of the estate at the guardian was materially assisted in rethe time the guardian took the same over moving many of the difficulties into which was cash amounting to between $4,000 and the estate had fallen. The guardian gave $5,000. He received large remittances, the the greater part of his time, for the first (209 P.) few months of his administration, to the tate should be taken into account in fixing management of the estate; but he was able to retain the management of a large retail merchandise store, conducted by him in the city of Portland. After the first six months, the management of the estate did not make so great demands upon his time. In his final report the guardian shows assets upon hand amounting to approximately $349,000. He collected from all sources $335,759.10, and disbursed $338,178.91, and had on hand at the conclusion of his trust, $2,630.19. The foregoing disbursements do not include the following items: Whitfield, Whitcomb & Co... Pacific State Fire Insurance Co......... Middleton & Clark, attorneys, balance of Wallace McCamant, attorney's fees........ Total $ 1,000 00 6,500 00 $34,816 50 the compensation of the guardian 21 Cyc. 174. Upon the hearing in the circuit court, Thomas J. Cleeton, an attorney, and county judge of Multnomah county for several years during the time the county court had jurisdiction of probate matters, testified that in his opinion $20,000 was a reasonable sum to be allowed the guardian as compensation for his services. No other witness was called to testify as to the amount of compensation to be allowed the guardian. [3, 4] Before consenting to assume the duties of guardian, Hammond required, and those presenting the petition for the appointment of a guardian agreed, that he should have all necessary legal and clerical help, and that he should be compensated to a greater extent than the ordinary court fees. After the death of the ward, each of three legatees under his will addressed a letter to the circuit judge, expressing a desire that the guardian be awarded compensation of Besides the services of brokers, alluded to not less than $35,000. One of these letters above, the guardian, in the management of was written by Stanley Simmons, above menthe estate, enlisted the services of competent tioned. The guardian insists that the unattorneys. The attorneys so employed insti- derstanding he had with the petitioners for tuted one or two foreclosure suits, a parti- the appointment of a guardian, together with tion suit, and an action for money, in con- the letters mentioned, entitles him to larger nection with which an attachment was is- compensation than would be the case, in the sued. They secured deeds to some of the absence of such an understanding, and withproperty that the ward had purchased joint-out the request expressed in the letters. ly with others, and in connection with which The understanding relied upon does not the ward had neglected to obtain title deeds. have the essentials of a contract, and did In a number of instances transactions were not create a legal obligation against the eshad with persons in whom Mr. Prince had tate. Prince was incompetent to bind his implicit confidence, and he had not seen fit estate, and the other petitioners had no auto exact written evidences of the obligations thority to do so; and although the court, in of such persons to him. These business arriving at the compensation that was just transactions, with the aid of the attorneys, and reasonable under the circumstances, had were placed upon a businesslike footing. a right to give some weight to the fact that The services of the attorneys were required such an understanding was had, such fact by the guardian in making up and presenting did not control the discretion which the stathis accounts, and in connection with the sales ute vested in the probate court in respect to of both personal and real property that were the amount of compensation to be awarded made by the guardian, and in the adjustment to the guardian. The consent of three of the of controverted claims and the perfection of legatees to the allowance of a minimum comtitles to the properties sold. The attorneys pensation of $35,000 to the guardian could so employed also counseled and advised the not bind others interested in the estate, and guardian, and rendered professional services for that reason such consent properly could in respect to the aeroplane plant, and in con- have no influence upon the amount of the nection with a brick-manufacturing company award. If those legatees feel that the guardiin which the estate was interested. For the an is not adequately compensated by the allegal services thus rendered to the guardi- lowance made by the circuit court out of an, the court, at the request of the guardian, the assets of the estate, they are at liberty allowed $17,000. The guardian likewise had to make up the deficiency from their respecthe assistance of office and clerical help, for tive portions of that estate. which he expended approximately $100 a month, or $2,400, and the services of auditors and accountants, for which the estate was charged $2,408. [2] The expenditures of the guardian to brokers, accountants, and attorneys for assisting him in the management of the trust estate amounted to about $25,000. The assistance so obtained and its cost to the es [5] We conclude that the guardian is not entitled to compensation in excess of that allowed by the circuit court, and that the court did not, by its order fixing the allowance, exceed or abuse its discretion. The decree of the circuit court is affirmed. JOHNSON et al. v. BERNS et al. (Supreme Court of Oregon. Sept. 19, 1922.) Appeal and error 635(3), 654-Supreme Court acquires jurisdiction to hear appeal, though transcript is incomplete. Under Or. L. § 555, relating to omissions in the transcript, the Supreme Court acquires jurisdiction of an appeal as against motion to dismiss, though the transcript does not contain certified copies of records offered at trial by respondents, appellants contending that it was incumbent upon respondents to supply the copies, and where appellants asked for leave to supply the copies, if it was concluded that they should furnish them, leave will be so granted. The plaintiffs have also filed a printed abstract. During the trial the defendants offered in evidence certain pages of county deed records, containing the record of a certain contract and of two designated deeds, and the defendants also introduced in evidence the pleadings in two other lawsuits, with leave to substitute certified copies of the records and original papers so introduced. The plaintiffs wrote to one of the attorneys for the defendants, requesting that the defendants cause certified copies to be prepared and filed, so that they could be included in the transcript when filed in this court; but the defendants replied to the effect that they did not believe it to be their duty to supply the certified copies. The plaintiffs then filed their transcript and printed abstract, and thereupon the defendants moved to dismiss the appeal, on the ground that, because of the absence of copies of the contract, two Action by E. D. Johnson and another deeds, and pleadings, the court was without against John J. Berns and others. Judg-jurisdiction to hear the appeal. In Banc. Appeal from Circuit Court, Tillamook County; George R. Bagley, Judge. ment of dismissal, and plaintiffs appeal. On The plaintiffs, although insisting that it motion to dismiss appeal. Motion denied. was incumbent upon the defendants to supS. S. Johnson, of Portland, and Webster ply certified copies of the records offered by Holmes, of Tillamook, for appellants. the defendants, requested that they be per Botts & Winslow, of Tillamook, for respond-mitted to supply the certified copies, if the ents. HARRIS, J. The plaintiffs prosecuted against the defendants a suit which ended in the circuit court in a decree of dismissal. The plaintiffs appealed, and filed in this court certified copies of the notice of appeal, undertaking on appeal, and decree, together with 274 typewritten pages of transcribed testimony, certified to be a complete transcript of the notes taken by the official court reporter. Attached to the transcript are a number of exhibits. The certificate of the county clerk declares that— "hereto attached are all of the exhibits introduced in the above cause; that said exhibits are the originals introduced, except where certain records were introduced in evidence with leave to substitute a certified copy; and that hereto attached are all of the certified copies of said records substituted by the respective parties." court concluded that the defendants were not jurisdiction upon the appellate court, al- The plaintiffs have appealed in good faith, and their motion for permission to supply certified copies is allowed, while the motion of the defendants for a dismissal is denied. See section 555, Or. L. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |