KELLY, J.
The salient allegations of plaintiff’s complaint disclose:
That in June 1934, Karl Buelow, Elizabeth M. Buelow, his wife, and their daughter, Gertrude Benson, the plaintiff herein, were residing upon the real property in suit.
On July 5, 1934, Karl Buelow died testate having devised said real property to his wife, Elizabeth M. Buelow.
That shortly after the death of Karl Buelow an agreement was made between Elizabeth M. Buelow and plaintiff and plaintiff’s fiance, Ciaron Benson, wherein Elizabeth M. Buelow promised and agreed to will said premises to plaintiff and build a new house thereon, and
in consideration therefor plaintiff and said Ciaron Benson agreed to move on to said property after their marriage to each other and care for same for said Elizabeth M. Buelow, tend the orchard, live on the premises and furnish all labor necessary for the care of said premises, including tractor and truck service, pay the fire insurance on the dwelling and other buildings, pay the taxes and water charges on the property and give said Elizabeth M. Buelow all the crops of fruit therefrom.
That plaintiff and Ciaron Benson were married on February 17, 1985, and about a week later moved on to said premises. That plaintiff and her husband fully kept and performed all the terms of said agreement until July 28, 1941, when a fire damaged the home on said premises to the extent that it became uninhabitable.
That said Elizabeth M. Buelow collected the money due under the insurance policy on said building.
That at the time of said fire it was further agreed that plaintiff and her husband would continue their agreement as aforesaid and permit Elizabeth M. Buelow to take the money coming due under said insurance policies in consideration for which, Elizabeth M. Buelow would not only leave them said property outright as previously agreed but within a short time she would construct on said premises a good modern home of convenient and suitable size and design for the use of plaintiff and her family.
That plaintiff and her husband have fully kept and performed the terms and conditions of said agreement as so modified.
That Elizabeth M. Buelow died on October 16, 1941.
That Elizabeth M. Buelow failed and neglected to construct a new dwelling on said premises as agreed; and also did not devise said realty outright to plaintiff.
That the cost of constructing a dwelling on said premises of convenient and suitable size for the use of plaintiff and her family is in excess of the sum of $5,000.
That the defendant William E. Williams has possession of the assets of the estate of said Elizabeth M. Buelow, deceased.
That the defendants claim some right, title and interest in and to the property in suit by virtue of a purported will of said Elizabeth M. Buelow, a copy of which is attached to plaintiff’s complaint.
That said claim constitutes a cloud on plaintiff’s title to said property. That the claim of the defendants is subsequent in time, inferior in right and subject to plaintiff’s right to said property.
That the heirs at law of said Elizabeth M. Buelow have some interest in said property and said heirs at law are numerous and uncertain and Elfrida Wostl is one of said heirs at law and she is joined herein in her own individual capacity and as a representative of the other of said heirs to defend for herself and for the benefit of all other parties similarly situated and interested. That Frances Benson has an interest in said property as a child of plaintiff living at the time of plaintiff’s death, and said Frances Benson is made a defendant herein to defend for herself and for the benefit of all other parties similarly situated and interested.
That William E. Williams and C. D. Nickelson are each appointed trustee by said.will and they are joined as parties defendant as legatees thereunder and as purported holders of the legal title to said property pursuant to said will to defend as such trustees and for the benefit of all other persons who might acquire any
interest in and to said property by virtue of the provisions of said will.
The prayer in plaintiff’s complaint among other things prays that a trust be impressed upon the property in favor of the plaintiff, that the plaintiff should be decreed to be the holder of a fee simple title to said premises, that the claims of the defendants should be held inferior in right, and subsequent in time to plaintiff’s title to said premises, that the administrator of the estate of Elizabeth M. Buelow, deceased, should be required to pay to the plaintiff $5,000 in cash for the purpose of constructing a dwelling on said premises; and said prayer concludes with a plea for such other and further relief as to the court may seem meet and just.
The defendant, William E. Williams, as executor and trustee of the estate of Elizabeth M. Buelow, deceased, filed an answer to plaintiff’s complaint consisting of one paragraph which, omitting the prayer, is as follows:
“The defendant admits that defendant Karl Buelow died testate on the 5th of July, 1984, and that on the 11th day of February, 1935, the plaintiff was married to Ciaron Benson, and that on the 17th day of December, 1935, a daughter was born to the plaintiff and her husband and that plaintiff’s family, since then, has consisted of her husband, herself and said daughter, and that the plaintiff is 31 years of age and that her husband is 34 years of age. That the said Elizabeth Buelow died on the 16th day of October, 1941, and that she did not devise her real property to the plaintiff, nor construct a dwelling house on said property and the defendant has the possession of the assets of said Elizabeth M. Buelow estate with the exception as to disbursements made to date in the payment of her debts and in the administration of her estate and defendant
admits that a copy of her last will and testament is attached to the plaintiff’s complaint and that there may be other children of plaintiff living at the time of plaintiff’s death. That William E. Williams is appointed trustee under the said will of said Elizabeth M. Buelow, deceased.
4 4 Save and except as herein admitted defendant denies each and every allegation in plaintiff’s complaint. ’ ’
By her will, a copy of which is attached to plaintiff’s complaint, after giving her personal effects and $500 to her niece, Elfrida Wostl, Mrs. Buelow devised and bequeathed the residue of her estate affected by this proceeding in the following terms:
4 4 The rest and residue of my estate both real and personal, I give to my trustees for the following uses and purposes:
(A) My daughter, Gertrude E. Benson, shall have the use of the farm property owned by me in Hood River County, State of Oregon, so long as she occupies the said property as a home and keeps the property in proper condition in the judgment of my trustees. All running expenses including water taxes, insurance and power must be paid by her.
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KELLY, J.
The salient allegations of plaintiff’s complaint disclose:
That in June 1934, Karl Buelow, Elizabeth M. Buelow, his wife, and their daughter, Gertrude Benson, the plaintiff herein, were residing upon the real property in suit.
On July 5, 1934, Karl Buelow died testate having devised said real property to his wife, Elizabeth M. Buelow.
That shortly after the death of Karl Buelow an agreement was made between Elizabeth M. Buelow and plaintiff and plaintiff’s fiance, Ciaron Benson, wherein Elizabeth M. Buelow promised and agreed to will said premises to plaintiff and build a new house thereon, and
in consideration therefor plaintiff and said Ciaron Benson agreed to move on to said property after their marriage to each other and care for same for said Elizabeth M. Buelow, tend the orchard, live on the premises and furnish all labor necessary for the care of said premises, including tractor and truck service, pay the fire insurance on the dwelling and other buildings, pay the taxes and water charges on the property and give said Elizabeth M. Buelow all the crops of fruit therefrom.
That plaintiff and Ciaron Benson were married on February 17, 1985, and about a week later moved on to said premises. That plaintiff and her husband fully kept and performed all the terms of said agreement until July 28, 1941, when a fire damaged the home on said premises to the extent that it became uninhabitable.
That said Elizabeth M. Buelow collected the money due under the insurance policy on said building.
That at the time of said fire it was further agreed that plaintiff and her husband would continue their agreement as aforesaid and permit Elizabeth M. Buelow to take the money coming due under said insurance policies in consideration for which, Elizabeth M. Buelow would not only leave them said property outright as previously agreed but within a short time she would construct on said premises a good modern home of convenient and suitable size and design for the use of plaintiff and her family.
That plaintiff and her husband have fully kept and performed the terms and conditions of said agreement as so modified.
That Elizabeth M. Buelow died on October 16, 1941.
That Elizabeth M. Buelow failed and neglected to construct a new dwelling on said premises as agreed; and also did not devise said realty outright to plaintiff.
That the cost of constructing a dwelling on said premises of convenient and suitable size for the use of plaintiff and her family is in excess of the sum of $5,000.
That the defendant William E. Williams has possession of the assets of the estate of said Elizabeth M. Buelow, deceased.
That the defendants claim some right, title and interest in and to the property in suit by virtue of a purported will of said Elizabeth M. Buelow, a copy of which is attached to plaintiff’s complaint.
That said claim constitutes a cloud on plaintiff’s title to said property. That the claim of the defendants is subsequent in time, inferior in right and subject to plaintiff’s right to said property.
That the heirs at law of said Elizabeth M. Buelow have some interest in said property and said heirs at law are numerous and uncertain and Elfrida Wostl is one of said heirs at law and she is joined herein in her own individual capacity and as a representative of the other of said heirs to defend for herself and for the benefit of all other parties similarly situated and interested. That Frances Benson has an interest in said property as a child of plaintiff living at the time of plaintiff’s death, and said Frances Benson is made a defendant herein to defend for herself and for the benefit of all other parties similarly situated and interested.
That William E. Williams and C. D. Nickelson are each appointed trustee by said.will and they are joined as parties defendant as legatees thereunder and as purported holders of the legal title to said property pursuant to said will to defend as such trustees and for the benefit of all other persons who might acquire any
interest in and to said property by virtue of the provisions of said will.
The prayer in plaintiff’s complaint among other things prays that a trust be impressed upon the property in favor of the plaintiff, that the plaintiff should be decreed to be the holder of a fee simple title to said premises, that the claims of the defendants should be held inferior in right, and subsequent in time to plaintiff’s title to said premises, that the administrator of the estate of Elizabeth M. Buelow, deceased, should be required to pay to the plaintiff $5,000 in cash for the purpose of constructing a dwelling on said premises; and said prayer concludes with a plea for such other and further relief as to the court may seem meet and just.
The defendant, William E. Williams, as executor and trustee of the estate of Elizabeth M. Buelow, deceased, filed an answer to plaintiff’s complaint consisting of one paragraph which, omitting the prayer, is as follows:
“The defendant admits that defendant Karl Buelow died testate on the 5th of July, 1984, and that on the 11th day of February, 1935, the plaintiff was married to Ciaron Benson, and that on the 17th day of December, 1935, a daughter was born to the plaintiff and her husband and that plaintiff’s family, since then, has consisted of her husband, herself and said daughter, and that the plaintiff is 31 years of age and that her husband is 34 years of age. That the said Elizabeth Buelow died on the 16th day of October, 1941, and that she did not devise her real property to the plaintiff, nor construct a dwelling house on said property and the defendant has the possession of the assets of said Elizabeth M. Buelow estate with the exception as to disbursements made to date in the payment of her debts and in the administration of her estate and defendant
admits that a copy of her last will and testament is attached to the plaintiff’s complaint and that there may be other children of plaintiff living at the time of plaintiff’s death. That William E. Williams is appointed trustee under the said will of said Elizabeth M. Buelow, deceased.
4 4 Save and except as herein admitted defendant denies each and every allegation in plaintiff’s complaint. ’ ’
By her will, a copy of which is attached to plaintiff’s complaint, after giving her personal effects and $500 to her niece, Elfrida Wostl, Mrs. Buelow devised and bequeathed the residue of her estate affected by this proceeding in the following terms:
4 4 The rest and residue of my estate both real and personal, I give to my trustees for the following uses and purposes:
(A) My daughter, Gertrude E. Benson, shall have the use of the farm property owned by me in Hood River County, State of Oregon, so long as she occupies the said property as a home and keeps the property in proper condition in the judgment of my trustees. All running expenses including water taxes, insurance and power must be paid by her.
(B) My trustees shall pay the sum of Thirty Dollars ($30.00) per month unto my daughter, Gertrude E. Benson, and if she shall ever become a • widow or be required to support herself then and in that event my trustees shall pay her the sum of Sixty Dollars ($60.00) per month.
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Said will also contains the following provision:
4 4 The herein before established trust shall be determined at the time of the death of my daughter, Gertrude E. Benson, and at that time the rest and residue of my estate then in existence shall be conveyed to her children, share and share alike. In the event that my daughter, Gertrude E. Benson, be
without children surviving her, the entire rest and residue of my estate, both real and personal, shall descend to my heirs at law.”
Defendants Williams and Nickelson and C. C. Lindley were named in said will as trustees; but only defendants Williams and Nickelson qualified as such.
By the foregoing statement, it will be seen that this is a suit in equity to impress a trust upon specific real property belonging to the estate of a decedent to secure the value of services rendered decedent by plaintiff in caring for said real estate less the reasonable value of its occupancy, or for a decree declaring plaintiff to be the owner in fee of the premises in suit and depriving the trustees herein and their cestuis qui trustent except plaintiff of any right, title, claim or interest therein, and for damages by reason of the breach of decedent’s agreement to construct a dwelling house for plaintiff on said premises.
The trial court treated the issue joined by appearing defendant upon the plaintiff’s claim that the agreement alleged in her complaint had been made and that plaintiff was entitled to compensation because of plaintiff’s performance thereof and also the issue upon plaintiff’s claim that after the destruction by fire of the dwelling house on said premises, said agreement was modified as alleged in plaintiff’s complaint to plaintiff’s damage as an action at law and rendered separate findings thereupon.
On the same day that the issues last above mentioned were so determined by the trial court, namely on the 17th day of May, 1943, that court made a decree which was filed on May 18, 1943, in favor of plaintiff and contained the following terms:
“It is adjudged and decreed that a trust be, and the same hereby is impressed on the hereinafter de
scribed real property in favor of the plaintiff and against the defendants and the plaintiff Gertrude Benson be and she hereby is declared to be the owner and holder of all the estate, right, title and interest heretofore held and owned by Elizabeth M. Bnelow, deceased, during her lifetime in and to the following described real property situated in Hood River County, State of Oregon, to-wit: [Here follows a
long
description of real property copied from Exhibit A attached to plaintiff’s complaint].”
On June 14,1943, plaintiff, by her attorneys, filed a motion “for an' order reopening the above entitled cause to the end that testimony may be offered to identify the land described .in the decree heretofore entered in said cause on May 18,1943, with that referred to in the testimony at the trial variously as the ‘Buelow Place’, the ‘Home Place’, etc.”
On June 19,1943, the trial court ordered the opening of said cause to take further testimony arid vacated said decree.
On July 22,1943, testimony was heard and an order was made by the trial court upon the motion of plaintiff authorizing the amendment of plaintiff’s complaint by amending Exhibit A attached thereto.
We quote from the last mentioned order :
“* * it appearing from the uncontroverted testimony entered herein that Exhibit “A” to the complaint comprises a larger tract of land than the one actually owned by the defendants but that said larger tract encompasses and includes the property described in the testimony as the ‘Bnelow Place’ or ‘Home Place’ and it appearing that the ends of justice will be served granting said motion.
“It is hereby ordered that Exhibit “A” to the complaint for all of the future purposes of this case shall be considered amended to read as follows:
‘ ‘ [Here follows description] ’ ’,
On said 22d day of July, 1943, a decree was rendered reciting that a default order had been entered against all defendants except defendant Williams and that on May 18, 1943, the court had made a decree, and on June 19, 1943, had ordered the reopening of said cause to take further testimony and had on said date vacated said decree and reopened the same for said purpose.
Said decree of July 22,1943, was filed with the clerk of the trial court on July 23, 1943, and contained a further recital as follows:
“It is adjudged and decreed that a trust be, and the same hereby is impressed on the hereinafter described real property in favor of the plaintiff and against the defendants and the plaintiff Gertrude Benson be and she hereby is declared to be the owner and holder of all the estate, right, title and interest heretofore held and owned by Elizabeth M. Buelow, deceased, during her lifetime in and to the following described real property situated in Hood River County, State of Oregon, to-wit: [Here follows description of real property as described in the amended Exhibit A of plaintiff’s complaint].”
It is urged by plaintiff that there was a legal action instituted by the filing of plaintiff’s complaint and also a suit in equity although both were contained in the same complaint. Based upon that contention plaintiff aigues that as to the judgment of $4,000 rendered by the trial court in favor of plaintiff, appearing defendant’s appeal should be dismissed because more than 60 days thereafter had elapsed before the service of defendant’s notice of appeal.
We are unable to agree with plaintiff that more than one case was instituted by her when she filed her complaint herein. We think that the case so instituted is a suit in equity and that until all of the issues therein
were finally determined by the trial court, there was no order which would have the effect of determining the suit so as to prevent a decree therein.
By the provisions of the statute, there are only four orders which may be reviewed on appeal:
1. An order affecting a substantial right and which in effect determines the action or suit so as to prevent a judgment or decree therein.
2. An interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition.
3. A final order affecting a substantial right and made in a proceeding after judgment or decree.
4. An order setting aside a judgment and granting a new trial.
Section 10-801, O. C. L. A., Yol 2, pp. 184, 185.
One of the material issues is whether there was an agreement between plaintiff and her mother which was thereafter modified to the effect that if plaintiff and her husband would continue to live upon the mother’s property and care for it, pay the taxes thereon and make return to the mother of the fruit grown upon said premises; the mother would not only execute a will devising said property outright to plaintiff, but would construct a dwelling house thereon for plaintiff and her family to occupy.
There could be no final determination of that issue in an action at law to recover merely the damages caused by the mother’s failure to construct the dwelling house. The remaining issue should be determined, namely, whether the agreement not only contemplated the construction of a new dwelling because the money derived from insurance upon the house destroyed had been diverted by the mother, but also contemplated and
required the execution of a will devising the property to plaintiff outright in consideration of services rendered as aforesaid.
Argued at Pendleton on the merits May 1; reversed June 6,1944
The assertion in a suit in equity of a claim legal in its nature does not deprive the equity court of its jurisdiction unless the legal remedy is plain, adequate and complete.
Section 9-101 O. C. L. A., Yol. 2 p. 2.
The relief sought and granted by the trial court in this case could not have been given in a court of law. It is obvious, therefore, that the inclusion in her complaint of a .claim for loss sustained by plaintiff on account of her mother’s failure to construct a new dwelling house in place of the one destroyed by fire, did not have the effect of transforming this suit in equity into two cases, namely an action at law and a ■ suit in equity.
As stated the original decree was vacated, then additional testimony was taken. Plaintiff was allowed to amend her complaint, and on July 22, 1943, a final decree was made.
Appealing defendant’s notice of appeal was served and filed on August 6,1943. Sixty days had not elapsed after the final decree was entered before the notice of appeal was served and filed.
The motion to dismiss defendant’s appeal is denied.