In re Miller's Estate

• Decision Date: 23 May 1950
• Citation: 218 P.2d 966,189 Or. 246
• Parties: In re MILLER'S ESTATE. SECURITY INV. CO. v. MILLER.
• Court: Oregon Supreme Court

218 P.2d 966

189 Or. 246

In re MILLER'S ESTATE.

SECURITY INV. CO. v. MILLER.

Supreme Court of Oregon.

May 23, 1950

Robin D. Day, Salem, argued the cause and filed a brief for appellant.

Bruce Spaulding, Salem, and MacCormac Snow, Portland, argued the cause for respondent. On the brief was Bruce Spaulding Salem.

Before LUSK, C. J and BRAND, BELT, BAILEY and HAY, JJ.

HAY Justice.

Henry J. Miller died, intestate, on September 13, 1946. Letters of administration upon his estate were issued to Annette I Miller by the Circuit Court for Marion County, Oregon. One of the heirs at law was Mrs. Albertina Gribble, a sister of said decedent.

From a time beginning prior to June 26, 1915, and continuing until his death, decedent had been under guardianship as an incompetent person. Annette I. Miller, now administratrix of his estate, was, at the time of his death, and for many years prior thereto had been, guardian of his person and estate.

On December 29, 1948, the administratrix filed in said court the final account of her administration of decedent's estate. In said account, she alleged that Albertina Gibble was indebted to the estate in a sum in excess of $20,000, which included an unpaid judgment of said circuit court in favor of Annette I. Miller, as guardian aforesaid, against L. L. Gribble, Albertina Gribble and E. R. Gribble, dated June 26, 1915, in the sum of $5,658.30, besides $500 attorney's fees. The administratrix claimed the right to set off said indebtedness of Albertina Gribble against her distributive share in decedent's estate, which distributive share is $1,667.62, or thereabouts.

On January 14, 1949, Security Investment Company, a corporation, filed its objections to said final account, whereby it alleged that it was interested in said estate, in that it holds a valid judgment against said Albertina Gribble in the principal sum of $10,114.40, such judgment having been obtained in said circuit court on August 17, 1923, and renewed by orders of said court made and filed respectively on August 15, 1933, and March 13, 1943; that no part of such judgment has been paid; and that objector has levied upon the interest of said judgment debtor in said estate. Objector denied that Albertina Gribble is indebted to decedent's estate in a sum in excess of $20,000, or in any sum, and denied that said estate held a valid judgment against Albertina Gribble in any sum.

After a hearing upon the final account and the objections thereto, the circuit court, on April 12, 1949, made and entered a decree sustaining said objections, disallowing the final account, ordering the administratrix 'to make and file herein a true final accounting, showing the interest of said Albertina Gribble', and decreeing that, upon such accounting, the interest of Albertina Gribble be held pro tanto for the satisfaction of the objector's said judgment. From such decree, the administratrix has appealed to this court.

On the hearing, the court required the administratrix to open the evidence. It is suggested that this was error, but we think otherwise. The hearing was upon the administratrix's find account, to which objection had been made, and she had the burden of sustaining and establishing its correctness. In re Lee's Estate, 132 Or. 1, 17, 271 P. 994, 279 P. 850, 280 P. 342; In re Roach's Estate, 50 Or. 179, 194, 92 P. 118; 34 C.J.S., Executors and Administrators, § 895 b.

Error is assigned upon the court's decreeing that the administratrix had no right to retain in her hands the distributive share of Albertina Gribble, and apply the same in satisfaction of Mrs. Gribble's indebtedness to the estate.

The transaction which culminated in the guardian's judgment had its origin in a loan of $5,000 of guardianship funds by a former guardian. It appears that the money was borrowed by L. L. Gribble, Mrs. Gribble's husband, and that Mrs. Gribble personally received none of it. A promissory note for the amount of the loan was given by L. L. Gribble, Albertina Gribble, and E. R. Gribble. It may be conceded that a promissory note is not a debt, but merely evidence of a debt. Black v. Sippy, 15 Or. 574, 576, 16 P. 418; Savage v. Savage, 36 Or. 268, 272, 59 P. 461. It does not follow, however, as the objector contends, that Mrs. Gribble's liability was confined to the note, and that she was not liable for the debt.

A debt is 'a sum of money due upon contract, express or implied.' 26 C.J.S., Debt, p. 2; Neilson v. Title Guaranty & Surety Co., 101 Or. 262, 274, 199 P. 948. The original note was not offered in evidence. Mrs. Gribble testified that she and her husband, L. L. Gribble, borrowed money from the guardianship estate; this was perhaps thirty years ago; they borrowed $5,000 on the note involved herein, and later another $5,000; they gave a promissory note for each loan, and Mrs. Gribble signed both notes; the $5,000 involved herein was actually loaned to L. L. Gribble; Mrs. Gribble did not get any of the money; her understanding is that she was 'just on the note as a guarantor' (the language is not that of Mrs. Gribble, but of counsel for the objector, in a question on cross-examination. Mrs. Gribble responded: 'That is the way I understand it, but I feel responsible and feel I owe the estate.'); she signed two notes. On this slender basis, counsel for the objector contend that Mrs. Gribble was not a comaker of the note, but only a guarantor. What arrangement there may have been between her and the other makers is immaterial. She signed the note. It was evidence of her debt as well as of that of the other makers.

The judgment based upon the note was conclusive between the parties to the action and their successors in interest by title subsequent to the commencement of the action, as to all defenses which might have been asserted prior to its rendition. Section 2-718(2), O.C.L.A.; Ward v. Warren, 44 Or. 102, 105, 74 P. 482; Ruckman v. Union Ry. Co., 45 Or. 578, 581, 78 P. 748, 69 L.R.A. 480; State ex rel. Weingart v. Kiessenbeck, 167 Or. 25, 30, 114 P.2d 147. The original debt became merged in the judgment. Ryckman v. Manerud, 68 Or. 350, 361, 136 P. 826, Ann.Cas. 1915C, 522; 30 Am.Jur., Judgments, section 150.

The guardianship of course, came to an end upon the death of the ward. 25 Am.Jur., Guardian and Ward, section 53. Annette I. Miller, as guardian, was under a duty, upon the termination of her trust, to settle her accounts with the court or with the ward's legal representatives. Chapter 524, section 18, subsection 5, Or.Laws 1947. As she is herself the decedent's legal representative, and as she appears to have treated the guardianship judgment as an asset of the decedent's estate, we have assumed, in the absence of...