Stadelman v. Miner
| Decision Date | 30 January 1917 |
| Citation | 83 Or. 348,163 P. 585 |
| Parties | STADELMAN ET AL. v. MINER ET AL. [a1] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Coos County; John S. Coke, Judge.
On rehearing. Former opinion reversed, and judgment below reversed, and suit dismissed.
For former opinion, see 155 P. 708.
This is a collateral attack upon the validity of a probate order licensing the sale of real property of a decedent's estate to pay the debts thereof. The material facts are that Charles W. Fletcher, an inhabitant of Coos county, Or., died intestate therein January 27, 1897, seised and possessed of real and personal property in that county. He left surviving Maggie E. Fletcher, as his widow, and Minnie E. Stadelman, a daughter, and Henry H. Fletcher, a son by a former wife, from whom, as it appears from a certified copy of a decree of a court of another state, which was received in evidence, he was divorced. The county court of Coos county, Or., upon Maggie E. Fletcher's verified petition, which set forth the facts necessary to give the court jurisdiction, detailed the property of the estate and estimated the worth thereof stated the deceased left no will, and gave the names and ages of his heirs and her own residence, but alleged that the residence of the daughter and son named was unknown appointed as administrator John F. Hall, a citizen and resident of that county, who duly qualified for the trust and entered upon a discharge of his duties. He published notice to creditors and caused to be made and filed an inventory and appraisement of all the property of the estate. In administering thereon the proceeds of the sale of personal property thereof were exhausted, leaving charges, expenses and claims not all satisfied, whereupon the administrator applied to the county court for an order of sale of the real property, or so much thereof as might be necessary to discharge such obligations. His petition therefor stated that all the personal property had been disposed of by order of that court, minutely detailed the charges, expenses, and claims remaining unsatisfied, as far as could be ascertained amounting to $512.98, gave a description of the real property and the value of the different portions or lots and the conditions thereof, alleged that there were no liens thereon except the taxes, gave the names and ages of the heirs and the residence of Maggie E. Fletcher, but alleged that the residence of the daughter and son named was unknown, stating what effort had been made to ascertain where they resided and averred that it was the belief of the administrator that Maggie E. Fletcher, then Mrs. Young, was the only surviving heir.
The county court on June 6, 1902, made findings of fact substantially as set forth in the petition, and ordered that a citation be issued to the heirs and all other persons interested in the estate to appear before that court at the courthouse on July 14, 1902, which was at a day of a regular term of that court, and show cause, if any they had, why an order should not be granted the administrator to sell so much of the real property of the estate, particularly described in the petition, as might be necessary to pay the debts and expenses mentioned; and that such citation be served upon the decedent's daughter and son, whose residence was found to be unknown, by publication for four weeks in the Coos Bay News, a weekly newspaper published in that county, requiring such heirs and all other persons interested in the estate to appear at the time and place so specified and show cause, if any existed, why the order prayed for should not be granted. The sheriff's return shows that the citation was personally served upon Maggie E. Fletcher. The affidavit of the printer of the Coos Bay News states that the citation, a copy of which is attached to the sworn declaration, was published in the regular issues of that newspaper once a week for five successive issues; the first appearing June 17, 1902, and the last on July 15th of that year. Predicated on such proof the county court on July 17, 1902, found that it was necessary to sell, with other land, the following described real property: The southwest quarter of the northeast quarter, the north half of the northeast quarter, and the northwest quarter of the southeast quarter of section 21, township 26 south, range 11 west, of the Willamette meridian, to pay the debts of the estate and the expenses of the administration. The court further found that the citation had been duly served; that the time for filing objections to the petition for the sale of land had expired, and that no person had appeared or filed objections to the granting of the license prayed for, whereupon it was ordered that the administrator be and he was authorized to sell the real property particularly described or so much thereof as might be necessary to pay the debts and expenses of the estate; that such land be disposed of at private sale to the highest bidder, one-half of the purchase price to be paid in cash on the day of sale, and the remainder to be evidenced by a promissory note payable in a year with legal interest and secured by a mortgage of the premises. Founded on such license the administrator duly advertised the sale of such land as provided by law and received only one bid therefor, that of August Nelson of $640, which sum was also to be in payment of Maggie E. Fletcher's dower right. The offer was accepted, and upon the administrator's report the county court on February 3, 1903, duly confirmed the sale, whereupon the administrator's deed and a conveyance of the dower right were executed to the purchaser.
Thereafter this suit was instituted by Mrs. Stadelman, her brother, and J. W. Motley, to whom an undivided one-half of the land had been conveyed, against W. H. Miner and Charles Worden, who had succeeded to all the interest of August Nelson in the real property hereinbefore described, to quiet the title thereto. The cause being at issue was tried, and from the evidence received findings of fact and of law were made; and based thereon a decree was given for the relief prayed for in the complaint, but the defendants were awarded $640, the purchase price of the land, and interest thereon from January 21, 1903, and the further sum of $302.54, which they had paid as taxes imposed on the premises. The court found that Maggie E. Young, as the widow of deceased, had an unassigned dower right in the land, which annuity at her age was equal to 4 per cent. of the present value of the premises, and further decreed that the real property be sold and from the proceeds arising therefrom that there be paid the sums so awarded, and if any money then remained it should be paid over to the plaintiffs. From this decree the plaintiffs and the defendants separately appeal.
Guy C. H. Corliss, of Portland, for appellants. Harry G. Hoy, of Marshfield, for respondents.
MOORE, J. (after stating the facts as above).
At a former hearing of this cause it was practically conceded that the administrator's deed was void on the ground that the order licensing the sale of the land was prematurely granted but it was contended that the curative acts of 1907 (Laws 1907, p. 330; L. O. L. § 7156) and 1913 (Gen. Laws Or. 1913, c. 363, § 3) remedied the infirmity. It was ruled, however, that these remedial statutes could not infuse life into any proceedings that never had vitality. Stadelman...
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