In re S. Marks & Co.'s Estate

• Decision Date: 09 September 1913
• Parties: In re S. MARKS & CO.'S ESTATE.
• Court: Oregon Supreme Court

133 P. 777

66 Or. 340

In re S. MARKS & CO.'S ESTATE.

Supreme Court of Oregon

September 9, 1913

Department 2.

Appeal from Circuit Court, Douglas County; John S. Coke, Judge.

Petition for the removal of H. Wollenberg, as administrator de bonis non of the partnership estate of S. Marks & Company. From a decree removing the administrator, he appeals. Affirmed.

This proceeding was commenced in the county court of Douglas county by the petition of Rachel De Bow, Sura Hartbrod, Clara Marks, administratrix of the estate of Adolph C. Marks deceased, and Meier Marks, as successors to the interest of Zulkind Krotki, an heir of S. Marks, deceased, for the removal of H. Wollenberg as administrator of the above-entitled estate. The dealings of S. Marks and Asher Marks, constituting the firm of S. Marks & Co., involved here, have a very long and complicated history, beginning in 1853. The name of S. Marks, deceased, was originally Samuel Krotki. He came to this country early in the fifties, and engaged in the mercantile business in Roseburg. A little later he took into partnership with him his nephew, Asher Marks, as S. Marks & Co., and that partnership continued until the death of Samuel Marks, which occurred September 20 1893. On October 9, 1893, after the death of S. Marks, Asher Marks was appointed administrator of the estate of S. Marks valued at about $12,000, and of the partnership of S. Marks &amp Co. His undertaking as such for both estates was in the sum of $150,000, upon which H. Wollenberg is one of the sureties. On August 31, 1899, Asher Marks died, leaving a will in which Herman Marks, his nephew, is his principal devisee and sole executor thereof. At the time of his death Asher Marks had not fully administered the estate of S. Marks & Co., nor made a final settlement of the estate. On September 29, 1899, after the death of Asher Marks, and upon the joint petition of Herman Marks and H. Wollenberg, the latter was duly appointed by the county court of Douglas county administrator de bonis non of the said partnership of S. Marks & Co. He entered upon the administration of the estate, taking possession of the property, books, and papers thereof, and still is such administrator; said estate being still unsettled. On October 3, 1899, on his own petition, he was appointed administrator of the partnership estate of S. Marks and H. Wollenberg, valued in his petition at $50,000, and he is still such administrator; the estate remaining unsettled. At the time of the death of Samuel Marks he left surviving him his brothers, Zulkind Krotki and Saul Krotki, and his sister, Myndel Trout; being his only heirs, and all residing in Russia. Zulkind Krotki died October 12, 1894, his heirs surviving him being Rachel De Bow, Sura Hartbrod, Meier Marks, Adolph C. Marks, Asher Marks, and Saul Marks, his children; the last named three being now dead. Plaintiff Clara Marks is the widow of Adolph C. Marks, and the administratrix of his estate. The petitioners in this proceeding ask for the removal of H. Wollenberg as administrator of the estate of S. Marks & Co., and that a new administrator be appointed in his place. The petition for such removal discloses that Asher Marks, as administrator of the estate of S. Marks & Co., was unfaithful to his trust and mismanaged the same, to the great loss of the estate and of the petitioners, reciting that he conspired with H. Wollenberg and Herman Marks to deprive Zulkind Krotki and these petitioners, his children and heirs to his interest in the estate of S. Marks, deceased, of their part thereof, and setting forth many specific wrongful transactions which it is not necessary to state here in detail; that H. Wollenberg, as administrator of the partnership estate of S. Marks & Co., has been unfaithful to his duties and violated his trust as such administrator in the various particulars specified in the petition and in failing to secure a settlement with the estate of Asher Marks as to his administration of the estate of S. Marks & Co., and by his neglect to settle and close said estates and distribute the same, to the great loss, waste, and depreciation of the estate of S. Marks & Co., and loss to the petitioners; that by reason of his unfriendly relations to petitioners and to their interest, his adverse attitude thereto, and his intentional delays in closing the estate, he is disqualified to act further in the matter. The county court of Douglas county entered a decree removing him as such administrator. The case was appealed to the circuit court, and there affirmed, and Wollenberg appeals to this court.

O.P. Coshow, of Roseburg (Coshow & Rice, of Roseburg, on the brief), for appellant.

E.B. Watson, of Portland (E.B. Watson, of Portland, and C.S. Jackson, of Roseburg, on the brief), for respondents.

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

In the trial of this proceeding in the county court the evidence was taken as fully as it would have been upon an accounting. More than 400 pages of...