Marks v. Coats

• Citation: 62 P. 488,37 Or. 609
• Parties: MARKS v. COATS.
• Decision Date: 22 October 1900
• Court: Supreme Court of Oregon

62 P. 488

37 Or. 609

MARKS v. COATS.

Supreme Court of Oregon

October 22, 1900

Appeal from circuit court, Douglas county; H.K. Hanna, Judge.

Petition by Asher Marks, as administrator, against W.H. Coats, as administrator, of the estate of Thomas Coats, deceased, for removal of defendant as administrator. From a decree of the circuit court affirming a decree of the county court in favor of petitioner, defendant appeals. Affirmed.

On December 10, 1895, Thomas Coats died in Douglas county, and his son, the appellant, was appointed administrator of his estate. At the time of his death, he was seised and possessed of real and personal property, which was inventoried by the administrator and appraised at $814.38, and was indebted about $2,400, including the sum of $954, and some interest due petitioner's intestate on a promissory note of date January 4, 1892. In January, 1895, a few months before his death, and while so indebted, he conveyed to his son 320 acres of land, valued at from $1,000 to $1,600, and to his daughter, Mrs. Wells, 160 acres, of the probable value of $500. Neither of these two tracts of land was included in the inventory filed. On May 22, 1897, the petitioner applied to the county court for the removal of the administrator alleging that the conveyances to him and Mrs. Wells from the deceased were made and accepted with intent to hinder, delay and defraud creditors, that he had fraudulently failed to include such property in the inventory, and was thereby unfaithful to his trust, to the loss of the petitioner. The administrator filed an answer to the petition, in which he admits that he did not inventory the property conveyed to him and his sister, but denies the fraud set out in the petition and alleges that such property was purchased by them in good faith, and for a valuable consideration, and was not included in the inventory, for the reason that no part of it belonged to the estate. Upon a hearing before the county court, an order was made removing the administrator, which was affirmed by the circuit court, and hence this appeal.

Dexter Rice, for appellant.

J.C. Fullerton, for respondent.

BEAN C.J. (after stating the facts).

The statute (Hill's Ann.Laws Or. § 1112) requires an executor or administrator, within a month from the time of his appointment, or such further time as the court or judge may allow, to make and file an inventory, verified by his own oath, of all the real and personal property of deceased which shall come to his possession or knowledge, and for a willful failure in this respect he may be removed. In re Holladay's Estate, 18 Or. 168, 22 P. 750. In making such inventory, it is his duty to include property which he knows to have been fraudulently conveyed by his intestate. 2 Woerner, Law Adm. (2d Ed.) *666; Minor v. Mead, 3 Conn. 289; Andruss v. Doolittle, 11 Conn. 283 . And it has even been held that an administrator's refusal to inventory property alleged to have been fraudulently conveyed, when requested by a creditor of an insolvent estate, is sufficient ground for his removal, without proof that the conveyance was, in fact, fraudulent. Andrews v. Tucker, 7 Pick. 250. But whether the authorities generally go to that...