rehearing">

On Petition for Rehearing

(39 P (2d) 955)

BEAN, J.

Both parties have filed a petition for rehearing and faithfully endeavored to assist the court in the determination of the matters herein involved.

In the final inventory made by the auditor, there were some important items of property, the value of which was taken from an old appraisement, and the testimony in regard to arriving at the value of the bank stock was understood to mean that that item included notes as well. Therefore, a restatement of the account will be made. "We think the auditor’s report is accurate, but it would probably be understood better by a bookkeeper than by the writer. No objection to the auditor’s report was filed.

It is understood that the items of household furniture and farm implements and machinery, the values of which are contained in the inventory of the auditor, are satisfactory to both parties. The testimony in regard to values thereof is meager.

The closing inventory of August 31, 1933, of the estate of William Jones, deceased, of personal property upon which the value was fixed by the testimony, or understood to be satisfactory to both parties, is as follows:

Cash on hand....................................$ 763.02

Cattle, 1818 head............................ 37,621.50

Horses and mules, 42 head............ 840.00

Sheep, 2281 head....................'.......... 8,268.00

Automobiles .................................... 800.00

Hay, 1200 tons..............:............. 8,400.00

Household furniture...................... 500.00

Farm implements and machinery.. 1,255.00

Total- personal" property- of which the value was fixed.— $58,447.52

*272 Deducting amount of chattel mortgage on cattle..............................$26,512.64

Accrued interest on same.............. 349.92

Unsecured note of Bank of Malheur ................................................ 6,000.00

Note of Kate Jones........................ 1,500.00 34,362.56

Net amount................................ $24,084.96

Deducting net amount found by the trial court as advances made by James Jones to Forrest Jones, after deducting offsets and credits...................................... $20,000.00

Leaves net amount of the personal property for which the value is fixed ................................................ $ 4,084.96

One-half of this sum, $2,042.48, is the net amount of the charge to be made herein against defendant James Jones on account of the personal property of the estate of William Jones, deceased, of which the value is fixed by the testimony, or is' satisfactory to the parties, for which a money judgment should be entered in favor of the estate of Forrest Jones, deceased, and for the legatees, devisees, plaintiffs and intervening plaintiffs herein, as the lien held by Forest Jones in his lifetime, as of the date of August 31,1933, together with interest thereon from said date at the rate of. six per cent per annum. This amount should be paid over and distributed as provided in the decree and findings of the trial court, and if not so paid within 60 days after entry of the decree in the circuit court, such personal property shall be sold by order of the circuit court, subject to the chattel mortgage above mentioned.

In addition to the amount of money judgment there is belonging to said estate, of William Jones, deceased, *273 to be divided in kind equally between defendant James Jones and the plaintiffs, tbe following:

Bank stock, old appraisement...................... $18,225.00

Money, notes and accounts, with interest thereon, estimated at................................ 22,535.83

The auditor, at the time of maldng up the account, made up a set of books, which are part of the record in the case but were not sent up to this court. The figures in this statement, as to interest on unsecured notes, will be subject to correction by the circuit court. The amount of the chattel mortgage and interest in favor of the Loan Company of Idaho is not definitely fixed in the record, and also it is understood that there are some costs and expenses in relation to the same, all of which the circuit court is hereby authorized to determine and adjust.

The defendant James Jones is hereby declared to be trustee and to hold in trust an undivided one-half part of any and all of the real estate belonging to the estate of William Jones, deceased, a major part of which is particularly described in those certain quitclaim deeds made, executed and acknowledged on November 23,1929, wherein Forrest Jones and Bernice Y. Jones appear as grantors and James N. Jones appears as grantee, the quitclaim deeds being found in the records herein as Exhibits E and F to the second amended answer of James Jones to the amended complaint, excepting the real estate heretofore devised by William Jones, deceased, or sold and conveyed by James Jones, said undivided one-half part to be for and as the interest of the estate of Forrest Jones, deceased, and for his legatees, devisees, plaintiffs and intervening plaintiffs *274 herein, in said real estate, subject to one-half of the following mortgages thereon:

Mortgage of Western Loan & Investment Co. .................................................................. $17,851.41

Accrued interest on same.................... 1,561.05

Mortgage of Federal Land Bank.................... 5,807.49

Together with accrued interest thereon, the whole amounting to approximately .................................... $25,219.95.

One-half of which, together with one-half of the accrued taxes, should be deemed a lien upon the interest of plaintiffs. All of said real estate should be particularly described in the decree entered in the circuit court. James Jones is hereby required to make, execute and deliver to the estate of Forrest Jones, deceased, for the legatees, devisees, plaintiffs and intervening plaintiffs herein, a good and sufficient deed of conveyance of an undivided one-half interest in said real estate, within 30 days from the date of entry of the mandate herein in the circuit court, and if defendant fails and neglects to so execute such deed the decree shall stand in the place of and be of the same force and effect as such deed, such deed or decree to be of the same force and effect, as far as the rents, issues and profits of said real estate, if any, are concerned, as though the same was executed or rendered on August 31,1933.

In addition to the notes and accounts above mentioned, James Jones is required to pay to the plaintiffs one-half of all the money collected on such notes and accounts since August 31,1933. The amount of interest on the two unsecured notes above mentioned is not shown in the record, and such interest will be subject to computation, by the circuit court, or under its supervision, and adjustment of the same, James Jones to *275 pay and satisfy said two unsecured notes as well as the notes and chattel mortgage of the Loan Company of Idaho, up to the amount deducted from the value of the cattle and other personal property.

The parties hereto seem to be in agreement as to dividing the notes and accounts in kind, and we. think that, notwithstanding there are some objections on the part of plaintiffs, the bank stock should be divided in the same manner. There is no value of such bank stock shown in the testimony or in the record, and it is extremely hazardous in these times to fix the value of bank stock fairly for the interest of all parties.

While some question was raised in regard to the expenses incurred by James Jones, we think the expense account is equitable. It seems fortunate for all concerned that there remains as much of the estate property of William Jones, deceased, as there is, after the perilous times of the depression.

It is suggested in the brief of plaintiffs on petition for rehearing that one of the notes given by James Jones was for the benefit of the Bank of Malheur. Nothing was said about this matter at the trial and it is not properly before this court. The decree herein will be without prejudice to any adjustment between the parties in this suit and the Bank of Malheur.

There may be several matters for settlement that occurred since August 31,1933, if not adjusted by agreement of the parties, such as the value of the rents, issues and profits of the real estate, if any, which the circuit court is hereby authorized and requested to adjust in this suit upon the same being presented by a petition or motion, or in some appropriate manner, by either of the parties. Likewise, in regard to the management of the real estate or other property described herein and the administration of the trust de *276 dared, the circuit court should make such orders and take such proceedings as may be necessary for the proper administration of the trust estate.

Several matters are discussed in the briefs on petition for rehearing which we have carefully examined and considered, but do not deem it necessary to further discuss.

As stated, we approve the findings and decree of the circuit court as to the costs and disbursements, including the expense account of ft: G. Miles, except that the auditor should be paid by James Jones. The plaintiffs and intervening plaintiffs are entitled to judgment for costs and disbursements in this court.

Our former opinion will be changed in accordance herewith.

Belt, J., not sitting.

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