In re Pittock's Estate

• Decision Date: 28 October 1921
• Citation: 102 Or. 47,201 P. 428
• Parties: IN RE PITTOCK'S ESTATE. v. PRICE. LEADBETTER
• Court: Oregon Supreme Court

201 P. 428

102 Or. 47

IN RE PITTOCK'S ESTATE.

LEADBETTER v. PRICE.

Supreme Court of Oregon

October 28, 1921

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Petition by F. W. Leadbetter against O. L. Price, as executor of the will of H. L. Pittock, deceased, claiming an interest as partner in the assets of the estate. Decree for executor, and petitioner appeals. Reversed and remanded.

See also, 199 P. 633.

By his petition in the matter of the estate of H. L. Pittock deceased, F. W. Leadbetter asserts that he and the deceased were partners, holding as such some shares of stock in certain corporations, and sundry tracts of real estate, and that the executor of Pittock's will has listed as the individual property of the decedent only one-half of those properties, both real and personal, of the partnership ignoring the other moiety, and proposes to sell part of the partnership estate. The petition schedules shares of several corporations and concludes the list with this statement "one-half of which belongs to the estate of deceased." Concerning realty, the petition says:

"All the following real property [referring to the list on designated pages of the inventory], one-half of which said real property belongs to the estate of deceased."

By stipulation a copy of the inventory has been made part of the record, and by comparing that document with the petition, it appears that in each instance the executor has inventoried only one-half of the property mentioned in the petition, both real and personal. The answer denies all the allegations of the partnership or partnership property. Affirmatively, it avers the appointment of O. L. Price as executor of the last will and testament of H. L. Pittock, deceased, and his filing of an inventory, which included all the property belonging to the deceased at the time of his death which had come to the knowledge and possession of the executor. Referring to the shares of stock mentioned in the inventory, the answer alleges the issuance to Pittock, during his lifetime, of certain certificates, in each instance covering in his name the number of shares inventoried, which the answer avers were the individual property of the decedent. The reply traverses the new matter in the answer.

Essentially the issue is whether or not there was a partnership existing between Pittock and Leadbetter at the time of the death of the former. The matter was presented to the circuit court on the pleadings on the question of whether or not that court had jurisdiction of the subject-matter, and that was also the form of the issue presented at the argument in this court. The decision in the circuit court on that point was against the petitioner, it being the only one presented, and he appealed.

L. A Liljeqvist, of Portiand (Cake & Cake, of Portland, on the brief), for appellant.

D. P. Price, Charles H. Carey, and James B. Kerr, all of Portland (John F. Logan, of Portland, on the brief), for respondent.

BURNETT, C.J. (after stating the facts as above).

The following sections of Oregon Laws are here set down:

"The executor or administrator of a deceased person, who was a member of a copartnership, shall include in the inventory of such person's estate, in a separate schedule, the whole of the property of such partnership; and the appraisers shall estimate the value thereof, and also the value of such person's individual interest in the partnership property, after the payment or satisfaction of all the debts and liabilities of the partnership." Section 1166.

"After the inventory is taken, the partnership property shall be in the custody and control of the executor or administrator for the purposes of administration, unless the surviving partner shall, within five days from the filing of the inventory, or such further time as the court or judge may allow, apply for the administration thereof, and give the undertaking therefor hereinafter prescribed." Section 1167.

"In case the surviving partner is not appointed administrator of the partnership, the administration thereof devolves upon the executor or general administrator; but before entering upon the duties of such administration he shall give an additional undertaking in double the value of the partnership property." Section 1170

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