In re Morrison's Estate

• Decision Date: 18 December 1906
• Citation: 87 P. 1043,48 Or. 612
• Parties: In re MORRISON'S ESTATE. v. McDONALD. JOEL et al.
• Court: Oregon Supreme Court

87 P. 1043

48 Or. 612

In re MORRISON'S ESTATE.

JOEL et al. v. McDONALD.

Supreme Court of Oregon

December 18, 1906

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Proceeding by Cora L. Joel and another to compel P.A. McDonald, as administrator of the estate of John Morrison, deceased, to file a final account. From a judgment in favor of petitioners, defendant appeals. Reversed.

Turner Oliver, for appellant.

C.H Finn, for respondents.

MOORE J.

This proceeding was instituted in the county court of Union county March 28, 1906, by Cora L. Joel and Minnie Goodman against P.A. McDonald, as administrator of the estate of John Morrison, deceased, to compel the filing of a final account. The petitioners, for themselves and for their four brothers, naming them, state in their application, in effect that Morrison died January 31, 1905, unmarried, without lineal descendant, and intestate, leaving in that county real and personal property; that McDonald was duly appointed as administrator of the decedent's estate by that court and, having qualified as such, he gave the required notice to creditors, prepared and filed an inventory of the estate showing the appraisment thereof to have been in cash $6,410.95, personal property, including notes and accounts, $12,388.70, and real estate, $12,275, makinp a total of $31,074.65; that on December 12, 1905, the administrator filed his first semiannual account, showing that he had received from the sale of personal property and from the collection of notes and accounts the sum of $3,487.51, and that he had paid out for all purposes $742.93, thus leaving in his hands in cash, including the money originally received, $9,155.53; that the estate owes no debts, and the money so in hand should be distributed or put at interest; that there are no existing contracts affecting any of the property of the estate to prevent a final settlement thereof; that the following are all the heirs at law of the deceased, naming them, and stating their respective degrees of relationship to Morrison, which, by reference to the petition for the appointment of the administrator, shows that the petitioners and their brothers are entitled as tenants in common to an undivided one-fourth of such estate by right of representation from their deceased mother; that all of such heirs are of age; and that McDonald had been requested by the petitioners to settle the estate, that the assets thereof might be distributed. A citation having been issued and served on McDonald, he demurred to the petition on the ground, inter alia, that it did not state facts sufficient to constitute a cause of suit against him, but what action, if any, was ever had upon this demurrer, is not disclosed. An answer to the petition was filed, stating that the administrator had tried to collect the promissory notes that were payable to the estate, some of which were good and would be paid after harvest; that certain other notes were doubtful, and an attempt to collect them by action would incur costs and disbursements, but the makers thereof had promised to pay them; and that several other notes were not then due, setting out a list of such commercial paper. A demurrer to the answer, on the ground that the facts stated therein did not constitute a defense, having been overruled, the court, in the same order, recited the averments of the answer in respect to the condition of the promissory notes, and thereupon denied the petition, and the petitioners appealed to the circuit court for that county, which reversed the order of the county court and remanded the cause, with directions to order the filing of a final account, in default of which to remove the administrator, and he appeals from such decree to this court.

The transcript does not contain any testimony, and the defendant's counsel state in their brief that none was taken in either court. The proceedings in the county court when exercising jurisdiction in probate matters, are required to be in writing, and, though no particular pleadings or forms are prescribed, the practice is in the nature of a suit in equity as distinguished from an action at law. B. & C. Comp. § 1100. Upon an appeal from a decree in equity given in any court...