In re Manser's Estate

• Decision Date: 28 November 1911
• Parties: In re MANSER'S ESTATE. v. BAKER. MANSER et al.
• Court: Oregon Supreme Court

118 P. 1024

60 Or. 240

In re MANSER'S ESTATE.

MANSER et al. v. BAKER.

Supreme Court of Oregon

November 28, 1911

Appeal from Circuit Court, Baker County; William Smith, Judge.

Proceedings by Nicholas Manser and others, beneficiaries under the will of Andrew A. Manser, deceased, for the removal of William Baker, as executor. From a decree of the circuit court removing the executor, he appeals. Affirmed.

This is a proceeding to remove an executor. Andrew A. Manser duly made a last will and testament, wherein he appointed William Baker executor, and authorized him to discharge the trust without the necessity of giving bonds. Manser died February 19, 1910, leaving as his only heirs his brothers, Nicholas Christopher, and Peter, and his sisters, Mary E. Rinkey and Mrs. John Kolbe, to whom he bequeathed several sums of money aggregating $7,300. The will was admitted to probate in Baker county March 22, 1910, and letters testamentary were issued to the executor, who thereupon duly qualified. At the same time, appraisers were appointed, who, on July 15, 1910, filed an inventory of the property of the estate, containing an item as follows: "Two New York drafts for $2,000.00 each, which the executor produces and states were given to him as a gift by deceased on his last illness $4,000.00." The executor, on January 26, 1911, filed his first semiannual account, in which it was averred "that prior to the making of his said last will and testament the said deceased delivered and gave to the said William Baker as a personal gift to him, and as compensation for his services theretofore given by him to the said deceased, two bank drafts issued by the Dillon State Bank of Dillon Montana, in the sum of two thousand dollars each, and that he has received the same." The account also showed that after deducting $1,112.68, disbursed by the executor, there remained on hand funds belonging to the estate amounting to $5,415.28, besides unpaid promissory notes, appraised at $2,760, not including interest, and that there were no legitimate claims against the estate, except the sum of money so bequeathed, to discharge which the executor petitioned for an order to sell certain real property of which the testator died seised.

The legatees interposed objections to the petition for an order to sell any land, asserting that with the $4,000, to which Baker laid claim, there was on hand $9,415.28 in money, which sum was sufficient for all purposes. They also petitioned for the removal of the executor, on the grounds of his failure to file an inventory within the time prescribed by law, and that he had been guilty of fraud and maladministration in claiming the $4,000 by reason whereof there was a direct conflict of interest between the estate and him, whereby he could not be indifferent in the matter. The legatees also averred, on information and belief, that the executor was without means or property, and there was danger of his abusing the trust in fraudulently administering the estate to their prejudice.

A citation was thereupon issued and served upon Baker, who, on March 2, 1911, filed an answer, denying generally each averment of the petition, and alleging that the inventory could not have been filed earlier than it was, because one of the appraisers was absent, and that the report was delayed in order to obtain information regarding property belonging to the estate at Dillon, Mont.; that for six years prior to his death Manser had been the personal friend of the executor, who at the testator's request went from Baker, Or., to San Diego, Cal., to care for him, and in consideration thereof was given two drafts, amounting to $4,000, setting forth at length the circumstances of the alleged donation, and tending to show that the management of the estate had been faithful and honest.

No reply having been filed, the executor, on April 3, 1911 insisting upon a default in this particular, moved the court for a decree on the pleadings, dismissing the petition, which motion was that day argued and submitted, but no ruling was made thereon. Three days thereafter, without the introduction of any testimony, the county judge found the facts as averred in the petition, and made an order, removing the executor, requiring him forthwith to file a final account and to turn over to the county clerk all personal property belonging to the estate, including the two drafts of $2,000 each; the order declaring that a failure promptly to comply therewith should be deemed a violation of law. Baker appealed from such order to the circuit court for that county, and, in lieu of a stay bond, deposited with the county clerk the property referred to, including two drafts of $2,000 each, issued to him by the State Bank of Dillon, Mont., in exchange for like drafts which that bank had given to the testator. The...