In re Wakefield's Estate

• Decision Date: 18 April 1939
• Citation: 161 Or. 330,89 P.2d 592
• Parties: In re WAKEFIELD'S ESTATE. v. MOORE et al. MARTIN et al.
• Court: Oregon Supreme Court

89 P.2d 592

161 Or. 330

In re WAKEFIELD'S ESTATE.

MARTIN et al. v. MOORE et al.

Supreme Court of Oregon

April 18, 1939

Department No. 2.

Appeal from Circuit Court, Klamath County; Edward B. Ashurst, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 87 P.2d 794.

I. H. Van Winkle, Atty. Gen., Sanderson Reed, of Salem, and A. W. Schaupp, of Klamath Falls, for appellant.

Haas &amp Schwabe, of Portland, for respondents.

BELT, Justice.

The court confesses error in holding that this proceeding was an action at law and that the findings of the lower court were conclusive if supported by any substantial evidence. We are convinced, upon reconsideration, that, since the administration of the estate was pending in the probate court, the proceeding is in equity and, on appeal, this court is not bound by the findings of the trial court, although the same are persuasive. In making such confession of error about the only consolation we have is that counsel seem to have been equally confused.

We think the proceeding is governed by § 11-1201, Oregon Code Supp.1935, which provides as follows: "When any person shall die intestate without heirs, leaving any real, personal or mixed property, interest or estate in this state, the same shall escheat to and become the property of the state and the clear proceeds derived therefrom shall be paid into and become a part of the common school fund of this state and be loaned or invested by the state land board as provided by law. The county court, before whom any probate matter is pending, shall determine whether there are any legal heirs to said estate, and if it be determined by said court that there are no legal heirs thereto, said court shall order the administrator of said estate to serve upon the said state land board a true copy of the order of court directing that said proceeds shall escheat, together with a copy of the final account in said estate. The said state land board shall have three [3] weeks from the date of service upon it of said copy of said final account in which to file its objections thereto, and after said final account has been approved by the court said administrator immediately shall pay over to said state treasurer all of such proceeds and said treasurer shall credit the same to the common school fund as other moneys received from escheats. Such administrator and his bondsmen shall be liable for the payment of such moneys to the state treasurer; provided however, that nothing in this act shall be construed as repealing any of the provisions of section 11-1221."

It is not, as contended by counsel for the State Land Board, a suit to determine who are heirs to an estate, as provided in §§ 11-901 to 11-906, inclusive, Oregon Code 1930. The State Land Board, in the probate proceeding, asserted that there were no heirs. It was proper for it to appear in the probate proceedings and make such contention for the purpose of having the "clear proceeds" of the estate escheat to the State. In such...