In re Osburn's Estate

• Decision Date: 16 October 1899
• Citation: 36 Or. 8,58 P. 521
• Parties: In re OSBURN'S ESTATE. v. OSBURN. [1] FOWLE et al.
• Court: Oregon Supreme Court

58 P. 521

36 Or. 8

In re OSBURN'S ESTATE.

FOWLE et al. v. OSBURN. ^[1]

Supreme Court of Oregon

October 16, 1899

Bean J., dissenting.

Appeal from circuit court, Douglas county; J.C. Fullerton, Judge.

In the matter of the estate of A.G. Osburn, deceased. From a judgment of the circuit court affirming an order approving the final report of Grace Osburn, administratrix, Fowle &amp Daley, creditors of the estate, appeal. Modified and affirmed.

This is a controversy arising out of the settlement of an estate. A.G. Osburn having died intestate, the county court of Douglas. county appointed his widow, Grace Osburn administratrix of his estate, which consisted of a stock of boots, shoes, and furnishing goods, valued by the appraisers at $2,558.04; but the inventory improperly included the "shoe bill of Isaac Farris, $180.80," as an asset of the estate, so that the value of all the goods rightfully appraised was $2,377.24. Said court having ordered that the merchandise be sold at private sale, and "as in regular course of business," the administratrix commenced selling the goods as ordered, keeping an account of the daily receipts, but not of the articles sold, nor the names of the purchasers, and, after conducting the business in this manner about eight months, sold the remaining goods at public auction, realizing for the entire stock the sum of $2,333.15. She thereupon filed her final account, showing that claims had been allowed against the estate amounting to $2,631.73 upon which she had paid, by order of the court, the sum of $759.90; that the funeral charges and expenses of administration were $1,301.49, and that there remained on hand for disbursement the sum of $271.76. Messrs. Fowle &amp Daley, creditors of the estate, whose claim had been allowed, filed objections to many items of the account, and issue being joined thereon resulted in the approval of the account, except an item of $40, paid to May Aubery for clerk hire, which was disallowed. From this decision an appeal was taken to the circuit court, and, the order complained of being affirmed, said creditors appeal to this court.

Wm. R. Willis and A.M. Crawford, for appellants.

J.W. Hamilton, for respondent.

MOORE, J. (after stating the facts).

As a preliminary matter, respondent's counsel move to strike from the transcript the petition for letters of administration, the order appointing the administratrix, her undertaking, the inventory, and the order of the county court directing a pro rata distribution of the funds of the estate; contending that neither of these papers was offered in evidence. The inventory constituted the first item of charge against the administratrix, and was the foundation of her account (Hill's Ann.Laws Or. § 1176; 11 Am. § & Eng.Enc.Law [[2d Ed.] 1200; 2 Woerner, Adm'n, § 510), the filing of which made the inventory upon which it was predicated a part of the record, and it was properly included in the transcript without having been offered in evidence. As to the order of distribution, the respondent is evidently mistaken, as the transcript shows it was in evidence. The other papers, however, not having been offered in evidence, and not being a necessary part of the final report, will not be considered; but this conclusion cannot change the result, for, the final account having been filed by Mrs. Osburn, showing that she had administered upon the estate, she is estopped from denying her representative character, or her liability to account accordingly. Damouth v. Klock, 29 Mich. 289.

When an estate is fully administered, the executor or administrator is required to file his final account, which must contain a detailed statement of the amount of money received and expended by him, from whom received, and to whom paid, and refer to the vouchers for such payments, and the amount of money and property, if any, remaining unexpended or unappropriated. Hill's Ann.Laws Or. § 1173. Inasmuch as it does not appear from the final account from whom the money was received, or what property, if any, remains undisposed of, or that the estate is fully administered, counsel for appellants contend that the account should be set aside, and the administratrix charged with the appraised value of the estate. No memorandum having been kept of the goods sold, or the separate amounts received for the different articles disposed of, it is impossible to check up the sales with the inventory, so as to be able to say with any degree of certainty that any goods remain on hand, or whether they were sold for more or less than their appraised value. The administratrix, as a witness, testifies that it was impossible to keep an account of what each article sold for at the auction, and impracticable, and almost impossible, to keen an account of the names of the persons to whom the property was sold, whether at the private sale on the public auction. If it were possible to obtain a corrected report, it would be the duty of the court to set aside the account, and require the administratrix to file one conforming to the requirements of the statute; but, since a corrected report cannot be made, we have concluded that the ends of justice can better be subserved by treating the account as the final settlement of the estate, believing that the administratrix made an honest effort to dispose of the property for the best interests of all concerned.

It...