Adams v. Petrain

• Decision Date: 21 January 1884
• Citation: 11 Or. 304,3 P. 163
• Court: Oregon Supreme Court
• Parties: ADAMS, Adm'r, etc., de bonis non of the Estate of Joseph Petrain, v. PETRAIN and others, Ex'rs, etc.

3 P. 163

11 Or. 304

ADAMS, Adm'r, etc., de bonis non of the Estate of Joseph Petrain,

v.

PETRAIN and others, Ex'rs, etc.

Supreme Court of Oregon

January 21, 1884

Appeal from Multnomah county.

Sidney Dell, for appellants.

Northrup & Gilbert, for respondent.

WATSON C.J.

This action was begun by the respondent, Adams, administrator de bonis non of the estate of Joseph Petrain deceased, against the appellants, Charles A. Petrain, the former administrator, and Holton and Manceit, his sureties upon his official bond, to recover an alleged unaccounted-for balance in his hands belonging to the estate. Joseph Petrain died in Washington Territory, of which he had been a resident, in March, 1876, leaving both real and personal property in said territory, and also leaving some money on deposit and some claims to be collected in this state. His widow, Catherine Petrain, was appointed administratrix of the estate in the territory, and the appellant, Charles A Petrain, the administrator thereof in the state of Oregon. The latter was afterwards removed from his trust and his letters revoked for misconduct in the administration of the portion of the estate coming into his hands, in a proceeding instituted for that purpose by the petition of the said Catherine in the county court of Multnomah county. The county court found, upon the hearing of such petition, that the said Charles had been unfaithful to his trust as charged, and decreed his removal therefrom; but neither then nor since has any settlement of his accounts as such administrator ever been had in said court, nor any proceeding taken there with such end in view. In this action in the circuit court such account was taken for the first time and judgment rendered for the balance found due against the said Charles and the sureties on his official bond. And this is the judgment which appellants seek to have reversed on this appeal. They contend that, waiving all other grounds of objection, the judgment must be set aside for want of jurisdiction in the circuit court, appearing from the foregoing facts.

The state constitution provides that "the county court shall have the jurisdiction pertaining to probate courts." Articles 7, 12. And the statute, defining its jurisdiction, declares: The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is, (1) to take proof of wills; (2) to grant and revoke letters testamentary of administration and guardianship; (3) to direct and control the conduct and settle the accounts of executors and administrators, etc. Code, § 869.

In the case before us the account of the administrator was not settled in the county court. The circuit court undertook to discharge that duty; and the judgment, which the respondent obtained in the action, is based upon the settlement of accounts had in the circuit court. Was the settlement of this account a matter pertaining to the jurisdiction of a court of probate? It cannot be denied, and besides the statute quoted from expressly enumerates such settlements as within the jurisdiction belonging to a court of probate; and if it is a subject of probate jurisdiction, which is undeniable, then it is within the exclusive jurisdiction of the county court, and the action of the circuit court was unwarranted. This conclusion, from the case already stated, is irresistible but respondent's counsel relies upon subsequent provisions in the same statute as authorizing such a proceeding in the circuit court. Section 1162 gives the county court authority to remove an executor or administrator who has violated his trust, and prescribes the mode of proceeding for that purpose. "Any heir, legatee devisee, creditor, or other person interested in the estate," may institute the proceeding by filing a petition setting forth the alleged misconduct. The executor or administrator, as the case may be, alone is cited, and the cause is summarily disposed of. Section 1066 provides that in case of removal, "administration of the estate remaining unadministered shall be granted to those next entitled, if they be competent and qualified." Section 1067 is as follows:

"Sec. 1067. The surviving or remaining executor or administrator, or the new administrator, as the case may be, is entitled to the exclusive administration of the estate, and for that purpose may maintain any necessary and proper action, suit, or proceeding, on account thereof, against the executor or administrator ceasing to act, or against his sureties or representatives."

It is claimed on behalf of the respondent that this last section authorizes the circuit court to entertain actions like the present, and several authorities from other states have been cited in support of this construction. But the statutes under which these decisions were rendered are dissimilar from our own in every instance, and most quite different. That of Missouri, perhaps, contains provisions more nearly resembling those in section 1067, above quoted from our Code, than are to be found in the statutes of any other state. The decisions cited from the reports of that state were made upon statutory provisions substantially the same as those which have been incorporated in sections 48 and 55, on pages 8 and 9, vol. 1, of the Revision of 1879. The first of these sections provides that "if any executor or administrator die, resign, or his letters be revoked, he, or his legal representatives shall account for, pay, and deliver to his successor, or to the surviving or remaining executor or administrator, all money, real or personal property of every kind, and all rights, credits, deeds, evidences of debt, and such papers of every kind of the deceased, at such times and in such manner as the court shall order on final settlement with such administrator or executor, or his legal representatives, to be made on motion of his successor or remaining or surviving executor or administrator." The section immediately following in the original enactment is in these words:

"The succeeding administrator, or remaining executor or administrator, may proceed at law against such executor or administrator, or his securities, or either of them, or against any other person possessed of any part of the estate."

The case of State v. Porter, 9 Mo. 356, was decided in view of the provisions contained in these sections, and a third section, (37,) authorizing the county court to revoke the letters, and impose a fine upon an executor or administrator neglecting or refusing to make a final settlement with the estate. The county court had ordered the removed administrator to pay over the moneys, effects, and credits in his hands belonging...