In re Morgan's Estate
| Decision Date | 03 January 1905 |
| Citation | 46 Or. 233,78 P. 1029 |
| Parties | In re MORGAN'S ESTATE. |
| Court | Oregon Supreme Court |
On petition for rehearing. Denied.
For former report, see 77 P. 608.
Platt & Platt, for appellant.
Ellis G. Hughes and Richard Williams, for respondent.
Counsel for the executrix has filed a petition for a rehearing, in which he discusses at great length and with singular learning and ability the jurisdiction of probate courts at common and civil law, for the purpose of showing that the court was mistaken in holding that at the time of the adoption of our Constitution such courts had power and jurisdiction to hear and determine the validity of claims against an estate or a decedent which had been presented to and disallowed by an executor or administrator. The question is an interesting one, but it is not necessary to follow counsel in his examination of it to ascertain whether his conclusions are justified from an historical standpoint, or whether the court was in error in saying in the former opinion that the allowance or rejection of claims against estates in process of administration has always been considered a proper subject of probate jurisdiction. He admits in his petition that the county court, sitting in probate, has, under the Constitution, "full probate jurisdiction as it existed at the time the constitution was adopted." At the time of the adoption of the Constitution the statute of the territory provided that claims against an estate should be presented to the administrator or executor for allowance and, if rejected by him, the holder should bring a suit in the "proper court" against the executor or administrator within a specified time, or the claim should be barred (Laws Or. 1854-55, p. 357); and that the judge of probate should have and possess full powers and "original jurisdiction in all cases relating to the probate of wills," etc., "the hearing and determining of suits and other proceedings instituted against executors and administrators upon any demand against the estate of their testator or intestate" (Laws Or 1854-55, p. 339). This statute is important in ascertaining the meaning of the phrase, "jurisdiction pertaining to probate courts," as used in section 12, art. 7, of the Constitution, defining the jurisdiction of county courts, as it was used in that instrument in the sense in which it was generally understood and accepted at the time. Adam v Lewis, 5 Sawy. 229; s.c. 1 Fed.Cas. 132. The statute was continued in force by section 7, art. 18, of the Constitution, until the law was changed in 1862. Wright v. Young, 6 Or. 87. At the time the Constitution was adopted, therefore, the probate court had jurisdiction to hear and determine claims against an estate which had been presented to and rejected by the administrator. As a contrary position forms the basis of counsel's argument, the question need not be further pursued.
The next point made is first raised in the petition for the rehearing. It is that the county court was without jurisdiction, because the claim was not presented to it by the original claimant, but by an assignee, acquiring title after the claim had been presented to the executor for allowance. Section 1161, B. & C., provides, among other things: "If any executor or administrator shall refuse to allow any claim or demand against the deceased, after the same may have been exhibited to him in accordance with the provisions of this act, said claimant may present his claim to the county court for allowance, giving the executor or administrator ten days' notice of such application to the court." Sections 27 and 393 provide that all actions or suits, except those specially enumerated shall be prosecuted in the name of the real party in interest. As at present advised, we are of the opinion that under these statutes the claimant mentioned in section 1161 includes an assignee or successor in interest of the person presenting the claim to the executor for allowance. This is in accordance with the principle running through our statute with relation to the commencement and prosecution of actions, suits, and proceedings. However, this is not a question which can be raised in this court for the first...
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Kirkpatrick v. U.S. Nat. Bank
...face of the complaint, Fay v. McConnell et al., 229 Or. 128, 131, 366 P.2d 327 (1961), and Morgan's Estate, 46 Or. 233, 242, 77 P. 608, 78 P. 1029 (1904). Similarly, any error arising from the contention that there was a misjoinder of parties plaintiff by the addition at the time of trial o......
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Patty v. Salem Flouring Mills Co.
...as is required when the sufficiency of testimony is challenged by a motion for a nonsuit (Morgan's Estate, 46 Or. 233, 77 P. 608, 78 P. 1029), the case will considered on its merits. The theory upon which the plaintiff seeks to sustain the action is that the delivery of certain wheat at the......