Jacobson v. Holt

• Decision Date: 19 April 1927
• Parties: JACOBSON v. HOLT.
• Court: Oregon Supreme Court

255 P. 901

121 Or. 462

JACOBSON v. HOLT.

Supreme Court of Oregon

April 19, 1927

Department 1.

Appeal from Circuit Court, Multnomah County; John C. Kendall, Judge.

Action by Gladys Jacobson against R. E. L. Holt, executor of George W. Dayton, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

C. H Finn, of Portland, for appellant.

Henry E. Collier and George A. Hall, both of Portland (Collier Collier & Bernard and G. A. Hall, all of Portland, on the brief), for respondent.

RAND J.

This is an action by plaintiff, against the defendant as executor of the last will and testament of George W. Dayton, deceased, to recover for services performed by plaintiff for decedent as a nurse. A duly verified claim for the services was presented by plaintiff to defendant, who rejected the claim. After its rejection and the expiration of the time limited by the Code for the commencement of an action against an executor or administrator, plaintiff brought the action in the circuit court for Multnomah county, under section 386, Or. L., which provides that- "An action may be commenced against an executor or administrator at any time after the expiration of six months from the granting of letters testamentary or of administration, and until the final settlement of the estate and discharge of such executor or administrator from the trust, and not otherwise."

The cause was tried to a jury and plaintiff had verdict, and from the resulting judgment defendant has appealed.

It is defendant's contention that the circuit court for Multnomah county had no jurisdiction to try the cause, and that plaintiff's only remedy was that provided for by section 1241, Or. L. This latter section provides that upon the rejection of a claim against an estate, the claimant may present his claim to the county court for allowance, giving the executor or administrator 10 days' notice of such application, and that that court shall have power to hear and determine in a summary manner all demands against an estate which have been rejected by the executor or administrator and that an appeal may be taken from its order allowing or disallowing the same.

Section 386 in its present form was enacted in 1862 and has not been amended or repealed, and prior to the 1885 amendment of section 1241 (Laws 1885, p. 44, § 1) was the only statute providing for the enforcement of a claim against an estate which had been rejected by an executor or administrator. By the 1885 amendment of section 1241, the provisions giving to the county court the power to hear and determine in a summary manner a claim which had been so rejected, and providing for an appeal to the circuit court from its decision thereon were added to its former provisions, thereby giving to a claimant, whose claim had been rejected, his choice of two remedies, either of commencing his action under section 386, directly in the circuit court, or under section 1241 of first submitting his demand to the county court, whose decision was subject to appeal by the losing party. For it was held in Pruitt v. Muldrick, 39 Or. 353, 65 P. 20, that the 1885 amendment did not repeal by implication section 386, and in that case it was also held that the remedy provided for by section 1241 was not an exclusive remedy, the effect of which was to authorize a claimant to follow the procedure provided by either of said statutes. In re McCormick's Estate, 72 Or. 608, 612, 143 P. 915, 144 P. 425, holds to the same effect. Those cases are decisive of the question now raised in so far as it is contended that the remedy provided for by section 1241 is exclusive.

Defendant's next contention is that it was not within the power of the Legislature to enact a law depriving the county court of any county in the state of jurisdiction over probate matters and to vest such jurisdiction in another court, and he cites in support thereof State v. McDonald, 55 Or. 419, 103 P. 512, 104 P. 967, 106 P. 444, and State v. O'Day, 41 Or. 495, 69 P. 542, both of which decisions were rendered prior to the 1910 amendment of article 7 of the state Constitution, section 12 of which before the amendment provided that "the county court shall have the jurisdiction pertaining to probate courts." Article 7 as amended by section 1a provides that, "The judicial power of the state shall be vested in one Supreme Court and in such other courts as may from time to time be created by law," and by section 2b that, "The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law." The effect of this amendment was to leave the jurisdiction over probate matters, until changed by legislative action, in the county courts of the respective counties of the state as it had been formerly, and when so changed to vest such jurisdiction in such courts as should be designated by the Legislature. In other words under this amendment, the provisions of section 12 of article 7 of the state Constitution were to remain in full force and effect so long as no legislative action thereon was taken, but if there should be legislative action, then the will of the Legislature as expressed in its enactments, and not the former provisions of said section 12, would become effective, unless they were in contravention of some other provision of the Constitution. See State v. Farnham, 114 Or. 32, 38, 234 P. 806.

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