In re Carlson's Estate

• Decision Date: 29 January 1935
• Citation: 40 P.2d 743,149 Or. 314
• Parties: In re CARLSON'S ESTATE. v. CARLSON et al. PETERSON, Swedish Vice Consul et al.,
• Court: Oregon Supreme Court

40 P.2d 743

149 Or. 314

In re CARLSON'S ESTATE.

PETERSON, Swedish Vice Consul et al., v. CARLSON et al.

Supreme Court of Oregon

January 29, 1935

Department 1.

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

Proceeding to contest probate of will of Carl A. Carlson, deceased, by Eric E. Peterson, Swedish Vice Consul for the state of Oregon and attorney in fact for Hilda Lisa Larson and others opposed by Fred Carlson and others. From and order and decree of dismissal, contestants appeal.

Reversed and remanded.

Gustav Anderson and Waldemar Seton, both of Portland, for appellants.

B. G Skulason, of Portland, for respondents.

KELLY Justice.

On the 18th day of April, 1933, a document purporting to be the last will and testament of Carl A. Carlson was admitted to probate in the circuit court of the state of Oregon for Multnomah county, probate department.

On the 14th day of April, 1934, contestant, being Swedish Vice Consul for the state of Oregon and attorney in fact for his nationals, filled a petition representing that certain alleged nieces and a nephew of deceased were and are residents and inhabitants of the Kingdom of Sweden; that an alleged will made on the 18th day of August, 1932, in the Kingdom of Sweden is the last will and testament of deceased that the document first above mentioned and admitted to probate as aforesaid is not the last will and testament of said Carl A. Carlson; and that said deceased never made it signed it, or published it.

When said petition was filed, Axel M. Green was named in the title of the case merely as Axel M. Green, without any descriptive words disclosing in said title that said Axel M. Green was the executor of the last will and testament of said Carl A. Carlson, deceased.

Paragraph X of said petition is as follows: "That Axel H. Green is the Superintendent of the Emanuel Hospital and has been appointed Executor of the alleged Will herein probated and should be removed as such Executor and made to account for the funds coming to his hands in this Estate and that the beneficiary under said pretended Will take nothing thereby but that the Will made on the 18th day of August 1932, in the Kingdom of Sweden is the Last Will and Testament of Carl A. Carlson, deceased, with the probate in this court."

On the 14th day of April, 1934, an order was made directing the issuance and service of citation upon said executor and the other defendants.

On said 14th day of April, 1934, a citation issued, directed to Fred Carlson, Axel M. Green, David Lofgren, Victor Carlson, and Emanuel Hospital, and Emanuel Charity Board, an Oregon corporation, commanding them to appear "in Department No. 7 before the Honorable Circuit Court, of the State of Oregon, in and for the County of Multnomah, at the Court House in the City of Portland, on the 22nd day of May, 1934, at the hour of 2:00 o'clock P. M., of said day, to show cause, if any exist, why the Will of Carl A. Carlson, offered for probate herein and admitted on the 18th day of April, 1933, and at this time contested by Eric E. Peterson, Swedish Vice-Consul for the State of Oregon, and why said Will so presented for probate on the 18th day of April, 1933, and the probate thereof should not be set aside, cancelled and annulled and why the later Will executed in the Kingdom of Sweden by the said deceased, should not be admitted to probate by this Court."

On the 16th day of April, 1934, said petition and citation were served upon said Axel M. Green, in Multnomah county, Or.

On the 4th day of May, 1934, the defendants Axel M. Green, David Lofgren, Emanuel Hospital, and the Emanuel Charity Board filed a demurrer to said petition upon the following grounds: "I. That it appears upon the face of said petition that the court has no jurisdiction of the persons of the said defendants, or of the subject of said proceeding.

"II. That it appears upon the face of said petition that the same does not state facts sufficient to constitute a cause of contest of the will described therein.

"III. That it appears upon the face of said petition that there is a defect of parties defendant, in that the executor of the will admitted to probate on the 18th day of April, 1933, has not been made a party to these proceedings."

On the 10th day of May, 1934, on motion of contestant, by order of the court, the words "Axel M. Green, executor of the estate of Carl A. Carlson, deceased," were inserted by interlineation in the title of the cause as set forth in said petition, and a citation to said executor was issued and on said 10th day of May, 1934, said last-named citation was served upon said executor.

On May 17, 1934, said Axel M. Green, executor, filed a motion to vacate and set aside the order of May 10, 1934, "permitting contestant to bring in as an additional party Axel M. Green, as executor of the will of said decedent."

On said May 17, 1934, said Axel M. Green, David Lofgren, Emanuel Hospital, and the Emanuel Charity Board filed a motion for an order dismissing said proceedings "on the ground and for the reason that the executor of the will of said decedent is a necessary party to said proceeding and that said proceeding was not commenced against him until after the expiration of one year from the date of the entry of the order admitting the will to probate and, therefore, the court is without jurisdiction to entertain said proceedings."

And on said May 17, 1934, said Axel M. Green, executor, filed a demurrer to said petition on two grounds:

"1. That it appears upon the face of said petition that the court has no jurisdiction of the person of the defendant or the subject matter of said proceeding.

"2. That it appears upon the face of said petition that the said proceeding has not been commenced within the time limited by the Oregon Code."

The question is whether Axel M. Green, as executor of said will and estate, was made a party to the proceeding instituted by contestant to contest the probate of said will when said petition therefor was filed. He was mentioned in the title. He was described in the body of the petition.

"The character in which one is made a party to a suit must be determined from the allegations of the pleading, and not from its title alone. And where there is a wrong description or no description in the title, the error will be deemed merely formal. A substantial description is sufficient. And where the allegations of the complaint indicate with reasonable certainty that a plaintiff sues, or a defendant is sued, in a representative capacity, although there be no express or specific averment thereof, this is sufficient to fix the character of the suit. Where it is doubtful in what capacity a party sues or is sued, reference may be had to the entire complaint to determine the question; and reference may also be had to the pleadings as a whole, or to the entire record." 47 C.J., Subject: Parties, pp. 176 and 177,§ 327.

"It is not necessary that a defendant to a bill in equity sought to be charged as a personal representative be described as executor or administrator in the process, or in the commencement or conclusion of the bill, where the bill sets forth facts sufficient to show that he is liable in that capacity. A bill alleging the death of a designated person and that defendant was thereafter appointed and acted as his administratrix sufficiently charges defendant's representative capacity." 24 C.J., Subject: Executors and Administrators, p. 828, § 2078, citing Matthews v. Hoagland, 48 N. J. Eq. 455, 21 A. 1054; Evans v. Evans, 23 N. J. Eq. 71; White v. Davis, 48 N. J. Eq. 22, 21 A. 187; Plaut v. Plaut, 44 N. J. Eq. 18, 13 A. 849; Manning v. Drake, 1 Mich. 34; Winsor v. Pettis, 11 R.I. 506.

A similar record to that at bar was considered by the Supreme Court of California, in the light of a statute providing that upon the filing of the petition for revocation of the probate of a will and within one year after such probate, "a citation must be issued to the executors of the will, *** and to all the legatees and devisees mentioned in the will," etc. We quote from that opinion:

"It is undoubtedly true that when the opening part of the citation is examined-that...