In re Elder's Estate

• Decision Date: 25 October 1938
• Citation: 119 A.L.R. 302,160 Or. 111,83 P.2d 477
• Parties: IN RE ELDER'S ESTATE
• Court: Oregon Supreme Court

160 Or. 111

83 P.2d 477

119 A.L.R. 302

IN RE ELDER'S ESTATE

Supreme Court of Oregon.

Argued September 14, 1938.

Affirmed October 25, 1938.

Executors and administrators

1. Whether testatrix in her lifetime had been fraudulently induced by executrix to convert bank deposit into joint account of testatrix and executrix, and whether testatrix had satisfied certain obligations of executrix which constituted an indebtedness of executrix to estate for which she should account, were questions which could only be determined by suit in equity, and were not within jurisdiction of county court or of the appellate courts in a proceeding for removal of the executrix and for appointment of an administrator with the will annexed.

Courts

2. The mode of proceeding in the county court, when exercising jurisdiction of probate matters, is in the nature of a suit in equity as distinguished from an action at law, but nevertheless the county courts are not vested with general equity powers, and if equity powers are to be exercised, recourse must be had to a court of chancery even if the subject matter of the suit may have been indirectly involved in the probate court.

Executors and administrators

3. A person whose personal interests are so adverse to the interests of an estate and of those entitled to its distribution that both cannot be fairly represented is not a proper person to administer the estate.

Executors and administrators

4. Evidence authorized removal of executrix, whose inventory which was not timely filed omitted any reference to money allegedly belonging to the estate but claimed by executrix, and appointment of an administrator with the will annexed on ground of apparent antagonism between interests of executrix and other beneficiaries under the will of decedent.

Executors and administrators

5. Every case for the removal of an executrix must be decided in accordance with the particular facts involved.

                  See 11 R.C.L. 49 (4 Perm. Supp., 2874)
                  23 C.J. Ex. and Ad., § 76
                

In Banc.

Appeal from Circuit Court, Marion County.

L.G. LEWELLING, Judge.

Proceeding in the matter of the estate of Hannah E. Elder, deceased, wherein beneficiaries under the will of deceased filed a petition for removal of the executrix of the estate and for the appointment of an administrator with the will annexed. From a decree removing the executrix and appointing another person as administrator with the will annexed, the executrix appeals.

AFFIRMED.

W.C. Winslow, of Salem, for appellant.

A.E. Clark, of Portland (Clark & Clark, R.R. Bullivant, all of Portland, and Carson & Carson, of Salem, on the brief), for respondents.

RAND, J.

Hannah E. Elder died testate in Marion county, Oregon, on November 7, 1935, leaving an estate of both real and personal property in said county. In and by the terms of the will, she gave her property in three equal shares, one-third thereof to her daughter, Grace Neibert, one-third to her daughter, Maude Smith; the remaining one-third she divided into equal parts and gave one part thereof to her son, W.A. Elder, one part each to Gale Missler and Margaret Lee, the son and daughter of a deceased daughter, and one part to Peggy Jane Missler, a granddaughter.

Under the will, Grace Neibert was named as executrix and it was provided that no bond should be required of her while so serving. The will was probated on November 25, 1935, and letters testamentary were issued to her on that day. Notwithstanding her said appointment, she filed no inventory until more than eight months thereafter.

Section 11-301, Oregon Code 1930, requires an executor or administrator, within one month from the date of his appointment, or such further time as the court or judge thereof may allow, to make and file with the clerk an inventory, verified by his own oath, of all the real and personal property of the deceased which shall come to his possession or knowledge. So far as the record shows, no application for an extension of time for the filing of the inventory was made and no extension was granted. In In re Holladay's Estate, 18 Or. 168 (22 P. 750), it was held that a failure to make and return an inventory of the estate by an executor or administrator within the time allowed by law is a violation of duty for which he is subject to removal. A like ruling was made in Marks v. Coats, 37 Or. 609 (62 P. 488), where the court said: "for a willful failure in this respect he (the executor or administrator) may be removed." To the same effect, see Manser's Estate, 60 Or. 240 (118 P. 1024); and cases there cited.

The inventory as filed omitted any reference to the sum of $4,731.59, which the testatrix had on deposit in the Ladd & Bush Bank in Salem, Oregon. It also omitted any reference to certain sums of money which the evidence taken upon the hearing tends to show the testatrix had, in her lifetime, paid out in satisfaction and discharge of certain mortgages on lands belonging to the executrix or to her husband, for which they, and not the testatrix, were liable.

Because of the omission first above referred to, all the beneficiaries under the will except the testatrix filed a petition in the county court, setting up that the sum so omitted from the inventory was an asset belonging to the estate and was claimed by the executrix as moneys belonging to her and not to the estate, and praying that she be removed and an administrator with the will annexed be appointed to administer the estate, or, in lieu thereof, that the executrix be required to give a good and sufficient bond for the faithful discharge of her duties. The executrix answered said petition, denying substantially all the allegations of the petition.

Upon the issues thus raised, a hearing was had in the county court and a ruling was there made and entered, denying the relief prayed for in the petition. An appeal was then taken to the circuit court for Marion county and an order was made in said court reversing the order of the county court and directing the county court to remove the executrix and appoint an administrator with the will annexed. An order was entered in the...