In re Murray's Estate

• Decision Date: 15 February 1910
• Citation: 107 P. 19,56 Or. 132
• Parties: In re MURRAY'S ESTATE. [d]
• Court: Oregon Supreme Court

107 P. 19

56 Or. 132

In re MURRAY'S ESTATE. ^[d]

Supreme Court of Oregon

February 15, 1910

Appeal from Circuit Court, Marion County; William Galloway, Judge.

In the matter of the estate of William Murray, deceased. Proceeding by F.P. Talkington, as administrator de bonis non, against Ed. Herren and another, as sureties on the bond of the former administratrix, for an accounting. From the decree, the sureties appeal. Reversed in part, and cause remanded, with directions.

This is a proceeding by the administrator de bonis non against the sureties upon the undertaking of the former administratrix now deceased, for an accounting of the estate's property received by her.

William Murray died in Marion county, Or., August 21, 1903, leaving his widow, Emma Murray, as his only heir. Excepting a few accounts due him, the only property he owned at the time of his death was a valuable stallion and race horse "Diablo," of the alleged value of $5,000. The horse required the constant care and attention of a keeper, and at the time Murray died was in the charge of Sam Casto. Immediately after the death of Murray, and while Casto was still in charge of the horse, viz., about August 26, 1903 the said Emma Murray leased him to Casto for a year. Under such lease, Casto continued in possession of the horse furnishing stable room, feed, and care for him until the 26th day of January, 1904, when Mrs. Murray took the horse from his possession. Casto thereupon commenced an action of claim and delivery against Mrs. Murray, alleging his right to possession under his lease. Thereafter said Emma Murray applied to the county court of Marion county for letters of administration upon the estate of William Murray, deceased and letters were issued to her on March 14, 1904; Ed. C. Herren and M.E. Becker being the sureties upon her undertaking as administratrix. Thereafter she answered in said replevin action, alleging title as administratrix to the horse, and repudiating her contract of lease with Casto on the ground that the contract was void, which resulted in a judgment in her favor. Casto v. Murray, 47 Or. 57, 81 P. 388, 883. Afterwards Emma Murray sold the horse for $4,000, and he was shipped to California. The sale was approved by the county court, though no order had been made authorizing said sale. The only debts against the estate other than the expenses of the last illness of decedent and the funeral and administration expenses, which were all paid by Emma Murray, were the claim of Casto and the expense of closing the administration. On April 7, 1904, the administratrix gave due notice to creditors to present their claims against the estate. No semiannual nor final accounts were filed by her, and in the month of September, 1904, she removed to California and died there on October 5, 1905. On October 30, 1905, F.P. Talkington was appointed administrator de bonis non of the estate of William Murray, deceased, and thereupon said Casto presented to him a claim for services and expenses in his care of Diablo from July, 1903, to January 26, 1904, in the sum of $620, which the administrator indorsed "Approved," and thereupon this proceeding was commenced in the county court to require Herren and Becker, as sureties, to account for the property of the estate coming into the hands of Emma Murray as administratrix. By their answer Herren and Becker admit the allegations of the petition, except they deny that there are any debts of the estate unpaid, and allege affirmatively that but one claim has been presented against the estate, and that by Sam Casto, amounting to $620, and that the same is fraudulent and void, and that he is estopped to claim the same, and for such estoppel set up the judgment in the case of Casto v. Murray, supra, and allege that the claim was not presented within six months from the date of the notice to creditors, and that Casto had stated that Emma Murray had paid all the debts owing by William Murray, deceased, at the time of his death. For a statement of the account they allege: "Emma Murray, administratrix, debtor to said estate, to sale of horse, Diablo, $4000.00. Credit, to amount received by Emma Murray, as heir at law of William Murray, deceased, $4000.00." They also asked that a final hearing be had upon the said account, and that the same be allowed, and the claim of Casto disallowed; that the sureties be discharged and exonerated from further liability. A reply was filed to this answer and final account, and the cause was tried in the county court, upon which a decree was rendered disallowing the claim of Casto, dismissing the petition, and directing that the sureties give notice of the filing of the final account and close the estate. Talkington appealed to the circuit court, in which the decree of the county court was reversed, and the claim of Casto was approved in the sum of $511.71. It was adjudged that Talkington as administrator de bonis non is entitled to an accounting against the sureties of the former administratrix; that he be allowed the amount of said claim, together with the attorney's fees, costs, and expenses, and his commissions as administrator, and judgment was directed against the sureties accordingly.

John Bayne and John Carson, for appellants Herren and Becker. W.M. Kaiser, for respondent Talkington.

L.H. McMahon, for respondent Casto.

EAKIN J. (after stating the facts as above).

The form of this proceeding is questioned for the first time in this court. Counsel for the sureties contend that there can be no action on the undertaking of an administrator until there has been a settlement of the account of the former administrator, which is not disputed. But this is a proceeding in the county court for such settlement and is not an action on the bond. However, the issues have been made and trial had upon the suggestion in the answer that, although a distribution was prematurely made, it was made to the heir and therefore the sureties should not be held for the whole of the property of the estate, but only for such amount as would be necessary to pay the debts and expenses of administration. This being acquiesced in by all the parties as well as the lower courts is a waiver by the administrator de bonis non of an accounting of the whole estate, the sureties having tendered an issue as to the amount and validity of the claim of Casto for the purpose of determining whether there is any occasion for an accounting, and, if so, for what amount. It was proper that Emma Murray as the heir of William Murray, deceased, care for the property of decedent, so far as necessary for its preservation, or cause it to be done, until the administrator was appointed. Casto v. Murray, 47 Or. 66, 81 P. 388, 883. And, if expense was incurred in the necessary care of the property before the appointment of the administrator, she was entitled to...