Appeal from Circuit Court, Multnomah County. Alfred T. Sulmonetti, Judge. No. 364-713.
Gerald R. Pullen, Portland, argued the cause and filed the briefs for appellants-cross-respondents.
Phillip Chadsey, Portland, argued the cause for respondent-cross-appellant. With him on the briefs were Charles F. Hinkle and Davies, Biggs, Strayer, Stoel & Boley, Portland.
Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.
This appeal is from an order of dismissal after a demurrer was sustained to the amended complaint. The basis of the demurrer was that the remedy, if any, is in equity and not by action at law, hence, the court had no jurisdiction. The defendant cross appeals a trial court finding concerning some of its affirmative defenses. Facts alleged by the pleadings before the court when it ruled upon the demurrer are included in the narration which follows.
The plaintiffs are sisters who were named as sole beneficiaries of a trust established in the will of Eva Powell who died in April 1964. The defendant was named executor of the will and trustee.
The will provided that the trust "* * * shall terminate upon the attainment of the age of majority by
the youngest of said children * * *." On August 27, 1964 the youngest sister Penny, then aged two weeks less than 14, was married to Michael Cobine, the validity of which marriage apparently is not challenged. In September 1964 the mother of the plaintiffs wrote a letter to the bank telling of the marriage. She expressed concern over the possibility of dividing the trust fund between her daughters at that time.
The bank filed a petition for a declaratory judgment in the Crook County Court (where the will was being probated) to have the will construed so that the trust would terminate when the youngest sister reached age 21. Citation issued to the three plaintiffs and their mother as guardian ad litem. The sheriff's return recited that service had been made personally on Elsie Peeler (the mother) and Penny Cobine. On April 14, 1965 the judge of the Crook County Court made a decree construing the part of the will concerning Penny's majority, holding that age 21 would be her age of majority. The probate estate was closed at the same time and the bank as executor transferred the trust fund to itself as trustee. Thereafter, the bank continued the management of the trust.
In June 1970 Joyce Clark, one of the older sisters, took a copy of the will to an attorney. The result was that the attorney wrote a letter to the trustee demanding termination of the trust because Penny Peeler Cobine had attained majority in August 1964. The bank refused, referring to the Crook County Court decree. The plaintiffs, after a further demand on the bank to terminate the trust with the consent of all the beneficiaries, then filed a suit in equity to have the trust terminated. A decree terminating the trust was made on October 19, 1970.
The plaintiffs then filed a complaint for fraud by trustee alleging that the bank had misrepresented to the plaintiffs that the trust would not terminate until Penny Cobine reached the age of 21. The complaint asked for $18,000 general damages and $200,000 punitive damages. After a written demurrer, and motions and other pleadings had been filed or disposed of, defendant orally renewed the demurrer ...