Froebrich v. Lane

• Decision Date: 18 April 1904
• Citation: 76 P. 351,45 Or. 13
• Parties: FROEBRICH et al. v. LANE.
• Court: Oregon Supreme Court

76 P. 351

45 Or. 13

FROEBRICH et al. v. LANE.

Supreme Court of Oregon

April 18, 1904

Appeal from Circuit Court, Marion County; R.P. Boise, Judge.

Suit by David Froebrich and others against D.F. Lane, personally and as administrator. From a decree sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

This is a suit to set aside an order and decree of the county court of Marion county, made and rendered in the matter of the estate of Emanuel Froebrich, deceased, November 24, 1902 settling and allowing the final account of the administrator the defendant herein. The deceased left an estate valued at $3,935. Plaintiffs are his heirs, and, being citizens of the Empire of Germany, have been represented by C.V Wintzingerode, imperial German consul at Portland, Or., and O. Lohan, his successor, who were authorized to act for and represent them in the matter of said estate by power of attorney, as well as by their attorneys in this proceeding. After stating the foregoing facts, the complaint continues in brief, that, after letters of administration were granted to defendant, one John Rieger, a creditor of decedent, instituted a proceeding for the revocation of such letters, and to secure his own appointment as administrator; that pending such contest, and while the same was on appeal, to wit, about April 26, 1902, the matter was compromised between the defendant on the one part and Rieger and these plaintiffs on the other, whereby it was agreed that the contest should be discontinued and abandoned, and defendant allowed to continue his administration and settle the estate, and that defendant in settling the same would not claim or charge any greater sum for counsel or attorney fees than $300, and would not demand any extra compensation for his own services; that, in pursuance of the agreement and compromise, Rieger and plaintiffs caused the contest to be discontinued, and agreed to permit defendant to open the safe-deposit box wherein money and papers of the deceased were deposited, and to take the same into his possession; that on October 23, 1902, the defendant filed in said county court in said matter his final account, wherein, in violation of said compromise and agreement, he sought to charge the sum of $171 as extra compensation over and above the percentage allowed him by law, the same being excessive, and no part of it having been earned, and also to claim and charge $1,423 as attorney fees, being $1,123 in excess of the amount agreed upon in said compromise, and that beyond this he charged the estate $40 for stenographer's fees, and the further sum of $15 for filing fees in a mandamus proceeding instituted in Multnomah county; that, in pursuance of defendant's application, an order was made by the county court, fixing Monday, November 24, 1902, at 9 o'clock a.m., for hearing and settling said account; that thereafter, and before the day fixed for settlement, when plaintiffs' attorneys inquired concerning the account, the defendant concealed from them the fact that it had been filed, whereby they were misled and deceived; that, for the further purpose of preventing plaintiffs and their attorneys from receiving knowledge of such filing, and to prevent them from interposing objections to said account, he caused the notice of final settlement to be published in the Salem Sentinel, in an obscure part of the paper, in fine type, without appropriate headlines, and so spaced and placed that, without close inspection, it would readily be misconstrued, and taken to be explanatory matter accompanying a railroad and steamship timetable; that, relying upon defendant's good faith in keeping the agreement and compromise, and being deceived and misled by him as to the filing of said final account, and not knowing or having notice thereof, plaintiffs failed to appear or file objections thereto, as they would otherwise have done, and that the account was allowed and settled as filed; that plaintiffs have refused to accept the amount awarded them as their distributive shares of said estate, and that the delay in bringing this suit was caused by reason of plaintiffs being citizens and residents of Germany. A demurrer having been interposed to the complaint and sustained, a decree was rendered dismissing the suit, from which plaintiffs appeal.

C.M. Inman and A.L. Veazie, for appellants.

Frank Holmes, for respondent.

WOLVERTON, J. (after stating the facts).

The jurisdiction of a court of equity to interpose and set aside the order or decree of a county court approving and settling the final account of an administrator is first challenged by the demurrer. The especial ground for invoking equitable jurisdiction is fraud in procuring the order settling the account, consisting in the disregard and violation on the part of the administrator, of the alleged compromise agreement, whereby he agreed that he would claim no extra compensation for his own services and no more than $300 as attorney fees and charges. It is the undoubted province of equity, long maintained, to set aside and enjoin the execution or enforcement of judgments at law and of its own decrees, when they have been procured by fraud, unaccompanied by negligence, laches, or fault on the part of him who invokes the interposition of the remedy. This general statement of the law will hardly be controverted. 3 Pom.Eq. § 1364; 1 Black, Judgm. (2d Ed.) § 321; Phillips v Negley, 117 U.S. 665, 6 Sup.Ct. 901, 29 L.Ed. 1013; Hayden v. Hayden, 46 Cal. 332; Gates v Steele, 58 Conn. 316, 20 A. 474, 18 Am.St.Rep. 268; Brooks v. Twitchell, 182 Mass. 443, 65 N.E. 843, 94 Am.St.Rep. 662. It is earnestly and strongly controverted by respondent, however, that the rule has application to probate proceedings, and especially under our own procedure, where the county court is given the exclusive jurisdiction, in the first instance, pertaining to a court of probate, the statute enumerating, among other powers, to grant and revoke letters testamentary of administration and of guardianship, and to direct and control the conduct and settle the accounts of executors, administrators, and guardians. B. & C. Comp. § 911. Speaking generally upon the subject, Mr. Woerner says: "In dealing with the judgments and decrees of probate courts upon the final settlements of executors and administrators precisely as with the judgments of other courts, courts of chancery review, enjoin, or annul them upon application of injured parties for fraud, and in some cases for...