In re Richter's Estate

• Decision Date: 18 March 1947
• Citation: 175 P.2d 997,181 P.2d 133,181 Or. 360,182 P.2d 378
• Parties: IN RE RICHTER'S ESTATE RICHTER <I>v.</I> RITCHIE ET AL.
• Court: Oregon Supreme Court

181 Or. 360

175 P.2d 997

181 P.2d 133

182 P.2d 378

IN RE RICHTER'S ESTATE RICHTER

v. RITCHIE ET AL.

Supreme Court of Oregon.

Argued on merits March 18, 1947.

Reversed May 27, 1947.

Rehearing denied June 24, 1947.

Motion to remand to lower court denied January 14, 1947.

ON MOTION TO REMAND

Executors and administrators — Findings by probate court

1. In proceeding in Probate Court relating to claim against estate, failure of court to make findings of fact and conclusions of law was not error so as to require Supreme Court to remand the case for making of such findings and conclusions.

ON THE MERITS

Executors and administrators — Claim against estate

2. On appeal from an order allowing or rejecting a claim against a decedent's estate, the Supreme Court does not try the case de novo as in equity proceedings but the hearing is in the nature of an action at law and the court's sole function is to determine whether there is any competent substantial evidence in the record supporting the findings of the trial court.

Executors and administrators — Findings of fact

3. Where the trial court made no findings of fact the order denying claim against estate would have the effect of a general finding.

Executors and administrators — Claim against estate

4. Where there is no conflict in the evidence, the Supreme Court on appeal from an order denying claim against estate is not bound by general finding of trial court, since the question is the legal effect of the evidence, which is a question of law.

Executors and administrators — Claims — Burden of proof

5. The burden of proof is on the claimant notwithstanding allowance of claim by executor.

Executors and administrators — Claims — Evidence

6. Evidence showed that claimant had advanced moneys for payment of taxes and improvements in the amount of $1,295.42 on property owned by decedent.

Executors and administrators — Claims — Evidence

7. Contention that claimant was indebted to estate for board and that when she started making improvements and paying taxes

on property owned by decedent she quit paying board was not sustained by the evidence.

Executors and administrators — Claims — Evidence

8. Any presumption that advances made for payment of taxes and improvements by daughter to mother living in same household were gratuitous was rebutted by positive evidence of claimant which was corroborated by other witnesses that advances were made with the expectation that repayment would be made when property was sold.

Frauds, statute of — Evidence

9. Evidence of an oral contract that violates statute of frauds is not admissible for the purpose of enforcing the contract but it may be received for other purposes.

Limitation of actions — Advance of money

10. Where obligation of claimant to advance money for payment of taxes and improvements was a continuing one which she continued to perform until death of owner of property, the statute of limitations would not commence to run until owner's death and claim for reimbursement was not barred by statute.

Frauds, statute of — Executed contract

11. A contract that has been executed by sale of land is not subject to statute of frauds which applies so long as the agreement remains unexecuted.

Frauds, statute of — Unexecuted contract

12. Agreement by daughter that she would advance money for payment of taxes, etc., and that upon sale of land daughter would have all that was realized in excess of amount of mortgage for which mother had taken the property was unenforceable because of the statute of frauds so long as the agreement remained unexecuted.

Executors and administrators — Assumpsit

13. The payment of taxes and making of improvements on property owned by another were benefits to estate of owner which otherwise would have lost the property and an action would lie to recover the moneys in indebitatus assumpsit.

Executors and administrators — Money due — Interest

14. Moneys became due from estate of decedant when claimant elected to pursue remedy by filing claim with executor on June 26, 1945, and amount of claim would draw interest from such date.

Appeal and error — Reversal — Judgment

15. Where the record was complete and plaintiff was clearly entitled to claim together with interest thereon the judgment

erroneously disallowing the claim would be reversed and cause would be remanded with instructions to enter judgment in conformity with opinion.

ON PETITION FOR REHEARING

Executors and administrators — Costs on appeal

16. Where claim which Supreme Court sustained was against decedent's estate and executor of estate was directed to pay the judgment, and there was no judgment against one who filed objections to the claim, which objections had been sustained by lower court, claimant would be allowed her costs both upon the appeal and in the lower court, but costs were to be assessed against decedent's estate and not against objectant, and were to be paid by executor out of funds of the estate.

                  Statutes of Frauds, enforceability of contract as regards proceeds
                of sale of property, note, 154 A.L.R. 385; 49 A.L.R. 1121
                4 Am. Jur. 517; 49 Am. Jur. 502; 21 Am. Jur. 920; 3 Am. Jur. 661
                53 Am. Jur. 788; 37 C.J.S., Frauds, Statute of, § 91; and 34 C.J.S
                Executors and administrators, § 453
                

IN BANC.

Appeal from the Order of the Circuit Court for Multnomah County, Probate Department.

ASHBY C. DICKSON, Judge.

John D. Galey, of Portland, for appellant.

Reuben G. Lenske, of Portland, for respondent Sarah Ritchie.

Hy Samuels, of Portland, for respondent, Morris A. Richter, as executor of the will and estate of Rosa Richter, deceased.

MOTION OVERRULED.

ROSSMAN, C.J.

1. This is an appeal from an order of the circuit court for Multnomah County (Probate Department)

which disallowed a claim presented by the appellant, Ruth Richter, against the Estate of Rosa Richter, deceased. The matter is before us upon a motion made by the respondents for an order of this court:

"1. Remanding the above entitled cause to the circuit court for the State of Oregon, Multnomah County, Probate Department, for the entry of findings of fact and conclusions of law.

2. Extending the time for Sarah Ritchie to file her answering brief in the above entitled cause until the matter of findings of fact and conclusions of law is determined in the circuit court for the State of Oregon, Probate Department or in this court, or to such other time as is just.

3. To abate further proceedings herein until the motion to remand is determined and/or the motion to vacate the order in the circuit court of Multnomah County is determined."

The motion is denied: In re Swanton's Estate, 153 Or. 644, 58 P. (2d) 604: In re Stout's Estate, 151 Or. 411, 50 P. (2d) 768, 101 A.L.R. 672. Argued March 18; reversed May 27, 1947

ON THE MERITS

(181 P. (2d) 133)

Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY, HAY and WINSLOW, Justices.

WINSLOW, J. (pro tempore).

Rosa Richter died February 19, 1943, testate. She left three heirs, Ruth Richter, claimant, a daughter; Morris A. Richter, a son, who will be referred to herein as the executor; and Sarah Ritchie, a daughter, who is the objector.

During the process of administration, claimant filed with the executor her claim against the estate in which she asserts the estate is indebted to her in the sum of $1639.53. It is claimed that this indebtedness is due from said estate to claimant by virtue of certain taxes paid, and certain improvements made with reference to the west thirty feet of Lot 18, Block 21, King's Second Addition to the City of Portland, Multnomah County, Oregon. The claim consists of taxes advanced in the sum of $995.42, interest upon these advances amounting to $344.11, and repairs on the house, $300. The claim was allowed by the executor, and the objector made objections to the final account of the executor, raising the question as to the validity of the claim, as well as some other matters which are not involved in this appeal.

The lower court heard the evidence and sustained the objections to the final account with reference to this claim thereby disallowing the claim. The trial judge filed a written opinion giving as his reason for disallowing the claim that "The testimony seeking to establish the existence of an express contract is clearly insufficient, depending exclusively upon the evidence of the one party thereto, with no corroboration other than an unsatisfactory and very hazy implication to be drawn from the executor's testimony that some such understanding might have been intended by the claimant and her mother, the decedent."

2. As was stated by this court in In re Swank's Estate, 163 Or. 367, 371, 97 P. (2d) 723:

"On appeal from an order allowing or rejecting a claim against a decedent's estate the supreme court does not try the case de novo as in equity proceedings. The hearing upon such a claim is in the nature of an action at law: In re Stout's Estate, 151 Or. 411, 417, 50 P. (2d) 768, 101 A.L.R. 672, and Oregon cases there cited. And, hence, when the case is brought here and the correctness of the trial court's decision is questioned, our sole function is to determine whether or not there is any competent, substantial evidence in the record supporting the findings of the court below. See Franklin v. Northrup, 107 Or. 537, 551, 215 P. 494; Bannon v. Thompson, 136 Or. 311, 313, 298 P. 907."

3. In this case the court made no findings of fact. The order denying the claim, however, would have the effect of a general finding. In re Stout's Estate, 151 Or. 411, 418, 50 P. (2d) 768, 101 A.L.R. 672.

4. We have examined the record carefully. We have read a second time all of the testimony offered by objector. This evidence, however, not only fails to contradict the showing made by claimant but in a measure, as we shall hereafter point out, sustains claimant's position. There being no conflict in the evidence on this issue, this court is not bound by the general finding of the...