Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-31

upon his death the title to the whole
devolved upon his widow as sur
viving tenant by entirety.
Savage died in January, 1909, leav-
ing a will, bequeathing to his wife
a portion of the income, for life, of
40 acres of land situated in Marion
county, with remainder over of the
fee to Linnie NJ. Reid, Gertrude
Kruse and Henry Kruse; also be-
queathing the use and occupancy of
a dwelling house and lot in Salem
to his wife so long as she should re-
main unmarried, with remainder over
to the same parties; and all other
estate not specifically devised was
bequeathed to the same parties. 1t
was also declared that the estate by
entirety, to which his wife would
succeed by virtue of the deed to the
Polk county farm, was to be in lieu
of dover in the remainder of the
property of decedent.
On June 10, 1909, this suit was
commenced, plaintiffs claiming that
| they ware the owners of the partner
ship interest of Savage in the busi-
ness before mentioned, and that the
proceeds derived from the sale of 1t
had been used to purchase the Polk
county farm and asking that the de-
| fendant be held as trustee and re-
quired to convey the premises to
them. The court below found that
defendant was a trustee for the use
of plaintiff to four-fifths of the prop
erty, and from a decree in accord
ance with this finding defendant ap-
peals
Mcbride, ]. In our Judgment the
evidence in this case fails to show
that any title to Savage's interest in
the partnership business ever passed
to plaintiffs. The alleged contract,
by virtue of which plaitiffs claim
that they became owners of the in
terest, consists of certain alleged
promises of Savage, and the written
document contained in the foregoing
statement. The promises, detailed
by plaintiffs in their testimony, ars as
follows Reid testified: "The agree
ment we had at that time Fas; that
Mrs. Reid should come in and keep
the books without any compensa-
tion, that Mr.. Savage at his death or
when he was through with the busi-
ness would leave us his half of the
business" Mrs Reid testifies: my
father said, if Mr.. Reid and l would
come in there and work hard, and let
him work when he wanted to, he
would just use it as long as he was
able to use it, then he would give 1t
to us, the whole business"
Neither of these statements consti-
tute a present transfer of an inter
est in the business. They constitute
if anything, an executory contract to
do something in the future, and are
in definite in their terms. In Reid's
statement, which differs materially
from that of his wife, there is moth
ing to indicate how long Mrs. Reid
was to work without compensation
Was it for a month, a year, or as
long as Savage should continue in
business? The terms Of the alleged
contract are silent and so is the tes-
timony. There is a like hiatus in
the terms of the contract as stated
by Mrs Reid. Nothing is stipulated
as to the length of time she and her
husband were to work hard" Old
age had incapacitated Savage from
doing work and each succeeding
wear would add to that incapacity
and consequently to the necessity Of
, his having assistance; and yet we
, find that the plaintiffs sold out and
left the business before Savage was