In re Stout's Estate

• Decision Date: 05 November 1935
• Citation: 50 P.2d 768,151 Or. 411
• Parties: In re STOUT'S ESTATE. v. KOERNER. LIBERTY et al.
• Court: Oregon Supreme Court

50 P.2d 768

151 Or. 411

In re STOUT'S ESTATE.

LIBERTY et al. v. KOERNER.

Supreme Court of Oregon

November 5, 1935

Department 2.

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

Proceedings in the matter of the estate of Addie Stout, deceased, wherein Olive Liberty and Walter Stout filed claims. From an order allowing the claims, Andrew Koerner, as executor of the last will and testament of Addie Stout, deceased, appeals.

Judgment reversed and cause remanded, with directions.

Andrew Koerner, of Portland (Dey, Hampson & Nelson of Portland, on the brief), for appellant.

E. M Morton, of Portland, for respondent.

BAILEY Justice.

The executor of the estate of Addie Stout, deceased, has appealed from the order of the circuit court for Multnomah county probate department, allowing the claim of Olive Liberty and Walter Stout, remaindermen, against the estate of the decedent to the extent of $1,000, for waste permitted by decedent in respect to three residential buildings in which she had a life estate.

On August 1, 1920, H. B. Stout, husband of Addie Stout, died testate. In his will he provided in part as follows: "I hereby give, devise and bequeath to my wife, Addie Stout, for the term of her natural life, lots fifteen (15) and sixteen (16) block three hundred and nine (309) Couch Addition in the city of Portland, Multnomah county, Oregon, to use the net income thereof for her maintenance and support. Upon the death of my said wife, Addie Stout, I give, devise and bequeath said property to my daughter, Allie Stout, and my son, Walter Stout, share and share alike, or the survivor, if without issue, if either should predecease my wife."

Olive Liberty, one of the claimants here, is the same individual as Allie Stout, mentioned in the above provisions of the will.

In November, 1921, the property above described was turned over by the executor of H. B. Stout's will to Addie Stout. At that time there were three dwelling houses on the two lots described in the will above mentioned which had been constructed in 1904, 1905, and 1906, respectively. When the life tenant, Addie Stout, came into possession of the property, the gross rentals therefrom amounted to $130 a month; two of the houses paying $40 each, and the other $50. From the time of the death of H. B. Stout in August, 1920, until November, 1921, the rentals were collected by the executor of the deceased husband's will. There is some intimation that the money so collected during this period was, by order of the court, paid to Addie Stout as widow's allowance. On September 23, 1933, Addie Stout died.

During her tenancy from November, 1921, until her death, the three houses, located at Northwest Twenty-Third avenue and Northwest Raleigh street, in Portland, Or., appear to have been rented continuously, or almost so, up to the year 1928; and in that period she received in excess of $9,000 as rental. From 1928 until her death, the evidence is indefinite as to the amount of rentals paid her. One of the houses had been vacant for approximately two years prior to her death. For the last five years of her life tenancy she received something like $3,000 in rental, making a total of over $12,000 in income from the property. The taxes paid during the life tenancy amounted to $4,257.20.

During the time that Mrs. Stout had possession of the property she had one of the houses reshingled, installed a new furnace in another, and had enough work done on the exterior and in the interior of the houses so that they were all tenantable until 1927 or 1928. There appear to have been tenants in all the houses except one, off and on, until the date of her death. The house which had remained vacant during the last two years of her life tenancy had been entered, windows in it were broken, and plumbing and lighting fixtures had been removed.

The claim filed with the executor for waste was itemized as follows:

Roof ..............

$ 350.00

Metal work ...........

100.00

Painting outside .....

400.00

Carpenter work ........

30.00

Inside cleaning ......

100.00

Furnace repair ........

30.00

Glass .................

15.00

Plumbing ..............

25.00

Rent refund ...........

15.00

Cement work ...........

30.00

Miscellaneous .........

25.00

---------

$1,120.00

Upon the executor's denial of the claim in toto, a hearing was had before the probate court, resulting as above indicated. At the hearing evidence was introduced to support the claim but it was, to say the least, very indefinite and unsatisfactory. The evidence relating to the roofs, for which an item of $350 was included in the claim, consisted of the receipted bills of the contractor who furnished the material and performed the labor. For the roofing of one of the houses there was a charge of $150, and on the other house a charge of $150 for reroofing and relining the gutters. There is no indication of how the sum of $350 was arrived at, nor is there any evidence as to how much of one bill for $150 was chargeable to roofing and how much to relining gutters. The charge for metal work, amounting to $100, is supported in part only, that is, to the extent of $44.50, by the receipt of the contractor who furnished the material and performed the labor.

Numerous receipted bills were introduced for paint purchased by one of the remaindermen, but there is no testimony showing how much paint was used on the outside of the buildings or how much labor was performed in that painting. The charge of $30 for carpenter work is not segregated into cost of labor and materials; nor is there any indication of where the carpenter work was performed.

From the evidence it is impossible to ascertain what constituted the item of $100 for cleaning the inside of the houses. In support of the charge of $30 for repairing the furnace, a receipted bill of $25 was introduced purporting to be for labor and material furnished in "changing outside cold-air intake to inside." Receipted bills for glass were introduced, but it is impossible to determine from the testimony and the bills the total amount paid on that account. The evidence regarding the plumbing is indefinite, and nothing can be ascertained from it. There is nothing to show that any rent was refunded by the claimants. Nothing can be ascertained from the record as to what, if any, cement work was done; nor is there anything to show what was included in the item labeled "miscellaneous."

The life tenant died in September, 1933, and much of the work was not done until the following summer. For instance, one of the witnesses stated that the reroofing of two of the houses was done in July, 1934. The receipted bills for that repairing are dated May 29 and August 10, 1934, respectively.

The appellant contends that if the hearing before the probate court was in the nature of an action at law, then the order or judgment appealed from must be reversed, for the reason that there was no specific finding of fact entered by the trial court. He suggests, however, that the hearing should be considered as in the nature of an equity proceeding, and that therefore the case should be tried de novo on appeal. In Bannon v. Thompson, 136 Or. 311, 298 P. 907, 908, this court held that in the trial of a claim which has been presented to and rejected by the executor or administrator, and then presented to the probate court, the proceedings "are purely legal in their nature and are not equitable," and the order made, either allowing or rejecting the claim, is expressly given "the force and effect of a judgment." The foregoing case was cited and quoted from with approval in Re First & Farmers' National Bank, 145 Or. 150, 162, 26 P.2d 1103. See, also, Branch v. McCormick's Estate, 72 Or. 608, 143 P. 915, 144 P. 425; Irvine v. Beck, 62 Or. 593, 125 P. 832; Pruitt v. Muldrick, 39 Or. 353, 65 P. 20, and Wilkes v. Cornelius, 21 Or. 341, 23 P. 473.

The cases here cited are based on section 11-504, Oregon Code 1930, which provides that on the disallowance of a claim the claimant may present his demand to the probate court for allowance, and that "the court shall have power to hear and determine in a summary manner all demands against any estate agreeable to the provisions of this act, and which have been so rejected by the executor or administrator, and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment, from which an appeal may be taken as in ordinary cases."

It has repeatedly been held by this court that on appeal to the circuit court from the order of the county court allowing or disallowing a claim against an estate the cause shall be tried de novo as an action at law, and that either party to the proceedings is entitled to a jury trial on such appeal. See authorities last above cited. It would be inconsistent to construe a proceeding in a probate court relating to a claim against an estate as a proceeding in equity, and then in the case of an appeal to the circuit court to consider it, not as an equitable proceeding, but in the nature of an action at law. The claim which is here presented is not equitable in its nature, cognizable alone by a court of equity, but is in the nature of a claim which is recognizable and enforceable in the law side of the court.

It does not follow, however, that, because the nature of this proceeding is legal rather than equitable, the order of the probate court allowing the claim is without value unless specific findings of fact are entered. That part of section 11-504 above quoted provides that the court shall hear and determine the matter in a summary manner, and that there shall be made in the record a concise entry...