Former opinion modified November 4, 1919.
On Rehearing.
(185 Pac. 231.)
On rehearing former opinion modified.
Modified.
Mr. Oliver P. Coshow, for the petition for rehearing.
Messrs. Neuner & Wimberly and Mr. C. L. Colvin, contra.' i
BENSON, J.The original opinion in this case will be found in 181 Pac. 986, where a statement of the issues may be found. The conditions under which both parties appear, render it'exceedingly difficult to arrive at a satisfactory solution of the problems presented. Captain Boswell, a retired officer of the regular army, died at Boswell Springs, in Douglas County, on May 19, 1907, leaving a surviving widow, who is the defendant here, and a small estate, of which the principal item is the real property known as Boswell Springs. Captain Boswell left a will in which he named Thomas F. Graber as executor. The latter, being a resident of Oakland, California, where he was practicing attorney, could not qualify,as executor, by *77reason of being a, nonresident, and so, the widow, Mrs. Emma E. Boswell, was appointed administratrix with the will annexed. Mr. Graber had been the intimate friend and legal adviser of the deceased for many years, and upon the death of the latter, Graber came at once to Oregon to assist the widows assuming the task of being her legal adviser. He proceeded to direct and manage the probate of the estate, which was finally closed early in 1909. Thomas F. Graber died on September 2,1914, leaving a will, naming his widow —the plaintiff herein — as executrix.
Upon assuming the duties of legal adviser to Mrs Boswell, the condition of her estate prompted him to advise her that in order to raise money for her immediate needs and in paying off certain indebtedness, she should give him her note, secured by mortgage upon certain of the real estate, and he would advance the necessary funds. This was subsequently done, the note being for the sum of $2,000, with interest at 8 per cent. At the time when the note and mortgage were executed, an insignificant amount of money had been advanced by Mr. Graber. Subsequently a portion of the real property was sold for $2,000, cash.
Mrs. Boswell continued to conduct the hotel at the mineral springs for about a year after her husband’s death, when it was destroyed by fire, together with her account-books and all business memoranda, and she then went to California, where she has since resided. She placed implicit confidence in her legal adviser, and as a consequence has to depend very largely upon memory for any evidence of their business transactions, and this source of information is necessarily unsatisfactory. Mr. Graber, while it appears that he was faithful to her interests- (although we may well question his judgment in some particulars), was, to *78say the least, a slovenly bookkeeper as to his own affairs. His executrix can supply us with no information as to the moneys advanced by her hushand,_except a carelessly kept and poorly identified day-book, a few canceled checks, and what- may be discovered from the public records of the probate court in the matter of the Boswell estate. Counsel for defendant urges very strenuously that since the note and mortgage were given for future advances, the complaint is wholly insufficient, in that it seeks a recovery upon the note itself for the face value thereof, basing the cause of suit upon the note, instead of seeking an accounting to determine the amount of money advanced thereon.
3. The plaintiff replies to this question, that, the answer contains a positive allegation that the full amount called for by the note has been paid out of the proceeds of the sale of land above mentioned. The fact is, as disclosed by the record, that at the time issues were joined, both litigants were groping in the dark as to the real situation of affairs, and whatever light is now available to them or to the court is developed by the evidence given upon the trial. The parties are both widows, neither of whom is burdened with wealth, and we have before us all of the evidence that could possibly be produced if we were to require them to join issue again, in a formal suit for an accounting. We shall therefore treat the case as a suit for an'accounting, and for a foreclosure of the mortgage to secure the amount so found to be due. The items discussed by us in the former opinion need not be further considered. ' The amounts secured by the mortgage consist of claims against the Boswell estate paid by Graber and such sums as he advanced to Mrs. Boswell, together with accrued interest on these items from the date of each until paid.
*794. Of course, the burden of proof rests upon the plaintiff to establish the amount of money advanced to the defendant. With this rule of law in mind, we have gone over the evidence, item by item. It would be unprofitable to enter upon a discussion of details. We have considered with care the question of the charge of $500, for the professional services of Mr. Graber, and, under all of the circumstances, we cannot say that the charge is unreasonable.
5. In the argument upon rehearing there was some discussion of the fact that during Graber’s lifetime, and after the hotel was burned, Graber had some of - the mineral water shipped to him at Oakland, California, for which there has been no accounting. We are unable to find in the record any evidence as to the quantity of water so shipped, or its market value, if it had any, and it is evident from .the record, that no living person possessed the desired information, and we are compelled to disregard this contention.
We find, from the evidence, that Mr. Graber paid $526.53, of the claims against the estate, expended $75, in traveling expenses in connection with the probate, paid $7.00 for notarial and recording fees, and plaintiff is entitled to recover these, together with $500, attorney’s fees in probating the estate, with interest to date, amounting in all, to the sum of $1,796.60. In addition to this, he advanced money to the defendant in the sum of $340.90, which with interest to date, amounts to $566.98, and the decree will therefore be for the total-sum of $2,363.58, and the usual decree of foreclosure. Neither party shall recover costs in either court.
Former Opinion Modified.