In re Baker's Estate

• Decision Date: 20 April 1937
• Parties: In re BAKER'S ESTATE. v. MOODY et al. BAKER
• Court: Oregon Supreme Court

67 P.2d 185

156 Or. 256

In re BAKER'S ESTATE.

BAKER v. MOODY et al.

Supreme Court of Oregon

April 20, 1937

In Banc.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Probate proceedings in the estate of Bertha I. Baker, deceased between Joseph W. Baker and Walter L. Moody and another individually and as executors of Bertha I. Baker, deceased and another. From an adverse decree, Joseph W. Baker appeals.

Modified and affirmed.

This is an appeal by Joseph W. Baker, petitioner, from a decree of the circuit court of Multnomah county, probate department which, in part, denied a petition presented by him concerning his interest in the estate of Bertha I. Baker, his deceased wife, and which, after ordering the sale of an apartment house property belonging to the estate, directed payment to the petitioner of a sum of money equal to the value of his interest in it. The three defendants are beneficiaries of the deceased's will, two of them being the executors of the estate.

Leland J. Decker, of Portland (Bannon & Decker, of Portland, on the brief), for appellant.

Loyal H. McCarthy, of Portland, for respondent.

ROSSMAN, Justice.

We shall refer to the petitioner (appellant) as the plaintiff and to the three respondents as the defendants. The decree which is under attack was entered by the circuit court of Multnomah county, probate department, July 7, 1936. Briefly stated, it (a) recites a stipulation of the parties authorizing the court to determine the value of plaintiff's curtesy rights, exempt property rights, and homestead rights in an apartment house property belonging to the estate of his deceased wife, Bertha I. Baker, upon the assumption that the property was worth $9,500; (b) dismissed a proceeding instituted by the plaintiff for a declaratory judgment; (c) authorized the defendants to borrow upon the security of the property enough money to enable them to pay the plaintiff $3,000 and discharge accumulated taxes and the cost of administering upon the estate; and (d) directed the plaintiff and his wife to deliver to the defendants instruments conveying title to the latter to the apartment house property and its furnishings upon receipt of $3,000 and provided that if they failed to deliver such instruments, the decree should serve in lieu thereof.

The plaintiff is the widower of Bertha I. Baker who died August 23, 1931, leaving an estate which consisted, among other items, of the apartment house property above mentioned and described in Moody v. Baker, 142 Or. 559, 20 P.2d 1069. That decision, which was announced April 18, 1933, after describing the property as a three-story apartment house, appraised as worth $17,500, held that the plaintiff was entitled to a homestead interest in it of the value of $3,000. May 25, 1933, the circuit court, probate department, entered the mandate of this court in an order which set apart to the plaintiff as a homestead the entire property. June 1, 1933, the court, in a decree with stated that the order just described was entered through error, set it aside and awarded to the plaintiff "a homestead exemption to the extent of and limited to $3,000.00 in the one-half of Lot Six (6) and the south half of Lot Seven (7) in Block Two Hundred Twenty-four (224), City of Portland, County of Multnomah, State of Oregon, which said homestead exemption is a fee simple right and interest in and to said described property, together with the apartment house and appurtenances therein, to the extent of $3,000.00 free and clear of any and all incumbrances of any kind upon the same and of any claims against the estate. *** Said Joseph W. Baker is entitled to the personal property of said deceased exempt by law from execution and said exempt personal property is not subject to administration." October 4, 1935, the court made an order which, referring to the plaintiff, stated: "The widower is entitled to pictures and musical instruments owned by the deceased, and as selected by the widower, to the value of $75.00. The widower is entitled to household furniture, actually kept and used by the decedent in her family, set forth in the widower's demand therefor, to the extent of $300.00 in value, but is not entitled to any of the household furniture used in the other apartments for rental purposes." December 26, 1934, the defendant-executors filed a report which contemplated that action be taken towards closing the estate. This report recited that the statutory executors' fee would be $643, that their attorney believed he was entitled to $2,500 as compensation for his services, that unpaid taxes amounted to $1,286.60, and that, in addition to bequests of specific items of personal property, cash bequests amounting to $4,500 were payable upon the sale of the real property of the estate. The report showed a cash deficit of $28.75. In concluding the report, the defendants prayed that the court authorize them, among other items, "to borrow sufficient money with which to pay off the homestead right of the widower." After this report had been filed, the plaintiff presented written objections to the grant to the defendants of authority to borrow money upon the security of the estate's property. April 18, 1935, before any action had been taken upon this petition, the plaintiff filed a demand for numerous items of personal property enumerated in the demand. He claimed these "under the exemption rights allowed him under order of the above entitled court, dated the 3rd day of May, 1932." The order just mentioned is the same one which set aside to him a homestead interest in the apartment house property and which was affirmed by this court in the decision already cited. The demand further stated: "Demand is hereby made for the immediate possession of the homestead as awarded to Joseph W. Baker, under order of court dated May 3, 1932." October 4, 1935, the court entered an order which, after mentioning the demand which we have just quoted, stated: "It appearing that the executors have offered to pay said Joseph W. Baker the sum of Three Thousand ($3,000) Dollars for said homestead interest, provided said Joseph W. Baker would execute and deliver to said executors a good and sufficient deed of his said property; and it appearing that said widower has refused and still refuses to execute such deed; and it further appearing to the court that the nature and character of said described real property can not be divided for the purpose of carving out said homestead right, and that it will be necessary to sell said real property in order to set aside to the said Baker his aforesaid homestead interest; *** and it further appearing that the probable value of said real property is the sum of $15,000 or thereabouts *** and it further appearing that it will be necessary to obtain the services of a real estate broker to make such sale; and the attorneys for the respective parties in open court having agreed that the usual and customary broker's commissions for such sale might be paid by the executors herein *** Now, therefore, it is here now ordered as follows: (I) That the executors proceed to sell, subject to confirmation by this court, at private sale for the purpose of paying off the homestead interest of the widower, Joseph W. Baker, the foregoing described real property ***; (II) That in case it becomes necessary to obtain the services of a real estate broker, said real estate broker's commission may be deducted from the net proceeds of such sale, from which said proceeds there shall first be paid to Joseph W. Baker, widower, the sum of $3,000, which shall be in lieu of and in discharge of the homestead interest of said Joseph W. Baker, and the balance of the proceeds shall be turned into court, or held by the broker making the sale, subject to such curtesy rights therein as may hereafter be fixed by the court. ***" The order directed that upon a sale the executors, the residuary devisees, the plaintiff and his wife should sign the necessary deed. In a report filed January 27, 1936, the defendants stated that the best offer they had been able to obtain for the property was from one Joseph P. Peters, who offered to purchase it (furnishings included) for the sum of $9,500 cash. The report stated that a real estate agent's commission was payable out of the price, and that the defendants believed it inadvisable to accept the offer.

April 1, 1936, the court entered findings of fact which, after referring to the defendants' report which we have just reviewed, set forth that following its receipt "the court thereafter notified the attorney for the executors and the attorneys for the widower, Joseph W. Baker, to appear in court for consideration of said offer of purchase, whereupon Mr. Decker, of attorneys for Joseph W. Baker, stated in open court that the offer of Ninety-five Hundred ($9,500.00) Dollars was satisfactory to the widower, Joseph W. Baker. Loyal H. McCarthy, as attorney for the executors, thereupon stated that the executors deemed it inadvisable to sell at said price of Ninety-five Hundred ($9,500.00) Dollars, that a sale at said price would result in wholly defeating the purpose of the testatrix to properly provide for her mother Ida S. Moody; but that the executors were willing to have the court fix the amount payable to the widower, Joseph W. Baker, in lieu of his homestead claim, his curtesy claim and his exempt property claims based upon a property valuation of Ninety-five Hundred ($9,500.00) Dollars for all of the said property so offered to be purchased by Joseph P. Peters. It was thereupon stipulated and agreed by the attorneys for the respective parties that the interests of all the parties concerned would be best conserved by bringing about a segregation of the property rights based upon...