Rose v. Russell et al.
| Decision Date | 19 February 1946 |
| Citation | 166 P.2d 137,178 Or. 394 |
| Parties | ROSE <I>v.</I> RUSSELL ET AL. |
| Court | Oregon Supreme Court |
See 34 Am. Jur. 346
33 C.J.S., Executors and administrators, § 150
IN BANC.
Appeal from Circuit Court, Malheur County.
REVERSED. REHEARING DENIED.
E. Otis Smith, of Ontario (with John W. Hill, of Los Angeles, Cal., on the brief), for Charles Bradford Russell and John W. Hill, appellants.
Harold Banta, of Baker (Hallock, Donald & Banta, of Baker, and A.F. Taddeucci, of San Francisco, Cal., on the brief), for A.F. Taddeucci and A.J. Schroeder, substituted for William Russell Desmond, appellants.
P.J. Gallagher, of Ontario, for respondent.
Suit by the widow of John W. Russell, deceased, for a decree declaring defendants estopped from interposing the defense that her right to recover dower was barred by the terms of the statute which prescribes that —
"no action or suit shall be brought after ten years from the death of a decedent, to recover or reduce to possession curtesy or dower by the surviving spouse of such decedent." (Section 17-601, Vol. 2, O.C.L.A.);
for a further decree holding and adjudging that plaintiff is entitled to her dower interest in the lands belonging to the estate of said John W. Russell, deceased; that an accounting be had of the proceeds therefrom and that plaintiff be awarded her just and proper proportion thereof.
From a decree in favor of plaintiff, defendants, except W.W. Scott, administrator, appeal.
In order to indicate at the outset who were the heirs of John W. Russell, deceased, and who were their grantees, we here note that Charles Bradford Russell and William Russell Desmond were the only surviving heirs at law of defendant John W. Russell; that defendants A.F. Taddeucci and A.J. Schroeder succeeded to the interest of defendant Desmond in the lands of decedent and were by order of the court substituted for Desmond as parties defendant herein. Furthermore, defendant Charles Bradford Russell conveyed one-third interest in the property involved herein to John W. Hill; and thereafter defendants Russell and Hill contracted with defendants, Emil William Maag and Helen M. Maag, his wife, to sell the property herein involved to said defendants Maag, which contract was thereafter modified by the parties thereto.
The solution of two questions is determinative of this appeal.
First, — Is the question properly presented whether this suit is barred by the statute declaring that no suit shall be brought after ten years from the death of decedent to recover or reduce to possession dower or curtesy by the surviving spouse of such decedent. Section 17-601, supra.
Second. If properly before us, should the question be resolved in favor of plaintiff on the ground that defendants are barred from using such defense under the principle of equitable estoppel by representation.
1. The argument is advanced by plaintiff that the defendants have not interposed a demurrer to plaintiff's second amended complaint based upon the terms of the above quoted statute and hence defendants have waived that defense.
In view of the admitted allegations of plaintiff's second amended complaint, it is established that John W. Russell died intestate in Malheur County, Oregon, on the 29th day of October, 1926, and that defendants, Charles Bradford Russell, William Russell Desmond, Emil Maag and Helen Mae Maag, his wife, and John W. Hill, object to any order or proceeding admeasuring or fixing plaintiff's dower in said lands and that said defendants contend that plaintiff is barred from recovering said dower by reason of section 17-601, O.C.L.A.
These facts being established as admitted facts in the case, it is obvious that there has been no waiver by said defendants of the defense based upon the statute in question.
2. It therefore remains only to determine whether the facts pleaded by plaintiff disclose that appealing defendants are barred from interposing the defense of the statute.
The representations alleged and proved by plaintiff were made only by the administrator and his attorney. To bind the heirs and their grantees, it must be pleaded and proved that the alleged representations were made by the heirs or by those in privity with them.
The law is well settled in Oregon that only parties and their privies are bound by the representation. Falls City Lumber Co. v. Watkins, 53 Or. 212, at 217, 99 P. 884; Carlon v. First Nat. Bank, 80 Or. 539, 543, 157 P. 809; Verrell v. First Nat. Bank, 80 Or. 550, 557, 157 P. 813; Sabin v. Phoenix Stone Co., 60 Or. 378, 118 P. 494, 119 P. 724; Security Savings and Trust Co. v. Portland Flour Mills Co., 124 Or. 276, 292, 261 P. 432; Pankey v. Oregon Etc. Ry. Co., 129 Or. 292, 276 P. 277.
In the case at bar it is shown that the representations were not made by the heirs or by any of their grantees; but only by the administrator of the estate.
"Of course no action or omission of an executor or administrator can bind those interested in the estate unless they or the decedent or the law duly authorized it." Bigelow on Estoppel, (6th Ed.) Chap. III, Section III.
There is no allegation and no proof that the heirs authorized the administrator or his attorney to make the representations in suit. Certainly it cannot be said that the decedent gave any such authority either to the administrator or his attorney.
3. Upon the question whether an administrator or executor is in privity with the heirs, we have held that there is no privity between them. McKinnon v. Bradley, ante p. 45, 165 P. (2d) 286. In that case the representations relied upon by defendants in their plea of estoppel were alleged to have been made by Charles F. Adams and L.F. Steel, who were trustees and executors of the estate of Caroline A. Kamm, deceased.
In that case, speaking through Mr. Justice HAY, this court said:
In numerous cases dealing with the effect of judgments...
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