In re McDermid's Estate
| Decision Date | 22 January 1924 |
| Citation | 109 Or. 633,222 P. 295 |
| Parties | IN RE MCDERMID'S ESTATE. v. BOURHILL. MCDERMID |
| Court | Oregon Supreme Court |
In banc.
Appeal from Circuit Court, Sherman County; D. R. Parker, Judge.
Proceeding upon objections by Eliza J. McDermid, to the final account of George B. Bourhill, as executor of the last will of John D McDermid, deceased. From a decree of the circuit court affirming an order of the county court, granting an allowance to the executor, plaintiff appeals. Affirmed as modified.
This is a proceeding arising upon objections made by Eliza J McDermid to the final account of George B. Bourhill, executor of the last will and testament of John D. McDermid, deceased.
John D McDermid died in Multnomah county on February 21, 1920. At the time of his death he was a resident of Sherman county and had been a resident of that county for many years. He left a will by which the defendant, Bourhill, was appointed as executor, without bonds, bequeathing all of his personal estate, after providing for the payment of his debts and the expense of a monument, to his wife, Eliza J. McDermid.
A clause in the will is as follows:
"Fourth I give, devise and bequeath unto George B. Bourhill, of Moro, Oregon, as trustee, and to be disposed of by him as hereinafter directed, all of the real estate of which I may be seized or possessed at the time of my death, and wheresoever the same may be situated, the same to be held and managed by the said trustee, and all of the net income therefrom to be paid by the said trustee to my said wife, Eliza J. McDermid, during the time she may live, and that upon her death the said trustee shall, as soon thereafter as may be practicable sell and dispose of all of said real estate upon such terms and conditions as he may consider to be most advantageous and beneficial, and out of the proceeds arising from said sale, my said trustee is hereby directed to dispose of the same as follows."
Then follow bequests to certain nephews and nieces and other parties, and to the Presbyterian Church of Moro, Or., with directions that, after payment of these gifts and bequests, the trustee and executor of the instrument should divide the remainder among certain other relatives of deceased.
The will was duly presented for probate, and on the 15th day of March, 1920, Bourhill was appointed executor, and letters testamentary were issued to him. Thereafter he filed an inventory and appraisement of the property, which consisted largely of real estate, and appraised the whole estate at the amount of $134,813.39. The appraisement was objected to by the state treasurer, who alleged the appraisement was insufficient and inadequate, as applied to all of the real property described in the inventory and appraised at an aggregate value of $113,405, and alleged that the full and correct value of said items was approximately $203,375. At the hearing held by the county court for the purpose of disposing of the objections, Mrs. McDermid appeared in person and by her attorney, and the executor by his attorneys, and it was then stipulated between the parties, in open court, that a decree might be made and entered in the county court, canceling and setting aside the inventory and appraisement formerly filed, so far as it related to the appraised value of the real property, and a revaluation and reappraisement made of the real property by the court of $142,362.50; and an order to that effect was accordingly entered. This made the complete appraisement of the property amount to $182,224.01; the personal property and income amounting to $39,861.51.
Shortly after the appointment of Bourhill as executor, Mrs. McDermid applied to the county court for assignment of her dower. Bourhill appeared and disputed her right to dower, and, such right being disputed, the county court was without jurisdiction and dismissed the proceedings. Thereafter Mrs. McDermid instituted proceedings in the circuit court of Sherman county for assignment of dower, and the circuit court held that, having accepted the provisions of the will, she had elected to waive her dower, and entered a decree against her, from which she appealed to this court, where the decree of the circuit court was reversed, and we held that she was entitled to dower in the property. See McDermid v. Bourhill, 101 Or. 305, 199 P. 610, 22 A. L. R. 428.
Bourhill proceeded with his duties as executor, filing three semiannual accounts, and on April 26, 1922, filed his final account and asked to be discharged. He employed originally as his attorneys Mr. Bryant and Mr. Bright. Later Mr. William A. Carter became associated with the case. He agreed with his attorneys to pay them for their services the same amount as the law allows an executor, which, if the value of the land is to be included as a basis of compensation, would amount to $3,764.48. In his final account the executor claimed this sum as his commission, and also the amount of $500 for alleged extra services, and the sum of $3,764.48 for attorneys' fees, and also asked for a further allowance of $1,000 for the attorneys. The county court allowed the commission asked, disallowed the claim of the executor for $500 for extra services, and allowed $233.52 beyond the stipulated compensation to the attorneys, making their compensation in all $4,000. From these allowances Mrs. McDermid appealed to the circuit court of Sherman county, and said allowances were confirmed. From that decree appellant has brought this appeal; the principal item in the contention being the claim that the executor could not be allowed a commission upon the real estate, stating the contention as follows:
"The executor could not take possession of the real estate in this instance or hold or manage it as executor because the will prohibits his doing so and expressly requires him to hold and manage it as trustee." And further:
"The personal property being more than sufficient to pay all claims and expenses of administration, the executor had no right to the possession of the real estate or the rents thereof."
W. H. Wilson, of The Dalles, for appellant.
William A. Carter, of Portland, and William C. Bryant, of Moro, for respondent.
McBRIDE, C.J. (after stating the facts as above).
We are clearly of the opinion that the executor was entitled to possession of the real estate until the filing of the final account or some order of the county court, wholly or partially turning it over to him as trustee. The sections of the statute bearing upon this are as follows:
The difficulty in this case is solved by mentally segregating the dual relation of Bourhill as executor from his relation to the estate as trustee under the will. The two offices are practically distinct; as much so as though Bourhill had been appointed executor of the will and some other person as trustee. His executorial duties must first be performed before he can exercise his duties as a trustee. As remarked by Justice Moore, in Roach's Estate, 50 Or. 179, 187, 92 P. 118, 121:
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