State v. McDonald
| Decision Date | 15 November 1909 |
| Citation | 104 P. 967,55 Or. 419 |
| Parties | STATE v. McDONALD et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Union County; J.W. Knowles, Judge.
Proceeding by the State against P.A. McDonald, as administrator of the estate of John Morrison, deceased, and others, to compel the escheat of certain real and personal property. From a judgment for the state except as against defendants McDonald and John Friswold, the other defendants appeal. Reversed and remanded.
See also, 103 P. 512.
This is an escheat proceeding, brought in the circuit court of Union county, under the provisions of the act of February 19, 1903 (Laws 1903, p. 127) in the name of the state by F.S. Ivanhoe district attorney of the Tenth judicial district. The amended information was filed August 13, 1907, setting forth, in substance, that Geo. E. Chamberlain, then Governor of the state, directed the district attorney to prepare and file the information in the name of the state; that John Morrison late of Union county, was the last person lawfully seised of several tracts of land therein, describing them; that Morrison died intestate on January 31, 1905, leaving no heirs, children, widow, or known kindred capable of inheriting the same; that one portion of the lands was in the possession of P.A. McDonald, who, as administrator of the estate of John Morrison, is made a party to the proceeding and another is held by J.B. Friswold, who is also a party that R.M. Rankin, T.M. Rankin, George Rankin, Earl Rankin, Minnie Goodman, Cora Joel, William Morrison, Lawrence Morrison, and Euphemia Krohn claim to be the owners of said real estate; that none of the defendants is entitled to said real estate, or to any interest therein, but that the same has escheated to the state, and the right of possession and ownership thereof is in the state; that John Morrison at the time of his death was also the owner of a large amount of personal property, consisting of horses, cattle, notes, and accounts, aggregating in value $20,000; that on February 3, 1905, P.A. McDonald was appointed administrator by the county court of Union county, and that he thereafter qualified, took possession of all the assets and property of the estate, and administered upon the same in the usual course of business, collecting and converting into money all of the personal property, and paying all claims and demands against the estate, together with the costs and expenses of administration thereof, and that the estate, so far as the administration thereof is concerned, is finally and fully settled, and nothing remains to be done except to determine to whom, if any persons, the property of said deceased shall descend; that McDonald, on January 22, 1907, filed in the county court his final account, showing that he had on hand for distribution the sum of $15,663.62; that he, as administrator, had in his possession that amount of money for said estate; that John Morrison left no heirs, children, widow, or known kindred capable of inheriting the said money; that the parties above named claim to be the owners thereof, but that none of them is entitled to the same, or to any portion thereof; and that the whole thereof has escheated to the state.
Separate demurrers were interposed to the amended information; Minnie Goodman and Cora Joel joining in one, and all the other parties, excepting P.A. McDonald, administrator, and John Friswold, joining in another, and the two latter in a third. All of the demurrers allege (1) want of jurisdiction of the persons and of the subject-matter; (2) several causes of suit improperly united; and (3) want of facts. In addition thereto the demurrer on the part of McDonald, administrator, and Friswold alleges want of jurisdiction of the court to try the question of heirship to the personalty. These demurrers having been overruled, the respective parties filed three separate answers, joining in the same relations in which they demurred. That of William Morrison, Lawrence Morrison, and Euphemia Krohn admits that at the time of the death of John Morrison he was the owner of the real property described in the information, and that they claim to own an undivided three-fourths interest therein, and that T.M. Rankin, Earl Rankin, Geo. Rankin, R.M. Rankin, Minnie Goodman, and Cora Joel are the owners of the remaining one-fourth, and that all of them are in the possession, and entitled to the possession, as heirs at law of John Morrison, deceased. Then the answer denies all other averments of the information. The separate answer of the last-named parties claiming to own the remaining one-fourth is to the same effect. P.A. McDonald answered separately, admitting the death of John Morrison, and the latter's ownership, at the time of his demise, of the property, substantially as alleged in the information, but denying that he (defendant) was in possession of any of the real property, admitting that he was appointed administrator of the estate, and that he had fully administered thereon, but denying that he had any money belonging to the estate in his possession, admitting that the other parties defendant, not including Friswold, claimed to be owners of the property as averred, and especially of the money remaining after the payment of the debts of the deceased and costs and expenses of administration, and alleging that the same was distributed and disbursed by the county clerk of Union county, upon an order of the county judge, to the said claimants. As an affirmative defense he avers all of the material facts relating to his appointment and qualification as administrator, and his acts in that capacity relating to the complete administration of the estate, including his discharge; that on the order of the county court he paid to the clerk all of the residue of said estate, and that thereafter that court adjudged and decreed that the above-named claimants were the heirs at law of the decedent, and that they were entitled to receive the same; that the clerk paid and distributed the same to such claimants by order of the county court, all of which it is averred occurred long before the commencement of these proceedings. The reply denies the material averments of this answer, and affirmatively alleges that no notice of final settlement, based upon the final account filed January 22, 1907, was published in the manner prescribed by law, for any length of time in any newspaper in Union county, although there are, and were at the time, a number of newspapers published in that county, and of general circulation therein; and that any action of the county court, as set forth in the answer of P.A. McDonald, was and is void, because that court did not have jurisdiction to make an order directing the distribution of any of the proceeds of said estate, nor to adjudicate, settle, or confirm the matters and things contained in said purported final settlement.
Upon the defendants' request a jury was called to try the issues, and at the close of the state's case they moved for a nonsuit, which was denied, but before the cause was submitted, the state dismissed as to McDonald and Friswold. A general verdict in favor of the state was returned, upon which a judgment was entered escheating both the real and personal property, and declaring the title thereto vested in the state, from which judgment the remaining defendants have appealed.
Turner Oliver and C.H. Finn, for appellants.
F.S. Ivanhoe, Dist. Atty., and Chas. E. Cochran (Cochran & Cochran, on the brief), for the State.
SLATER, J. (after stating the facts as above).
This is a special proceeding in which general power over the subject-matter is vested by statute in the circuit court. The manner of proceeding, and the facts necessary to be set forth in the information required to be filed, are specifically set forth in the statute, and they must be substantially complied with before there can be a valid adjudication. Wallahan v. Ingersoll, 117 Ill. 123, 7 N.E. 519. We think this has been done in this case, and that jurisdiction was acquired, at least so far as the real property is concerned.
It will be observed that separate averments were made in the information respecting the title, ownership, and possession of the real property on the one hand, as distinguished from the personalty on the other. We presume this occurred because it was supposed that the possession was in different parties. We are not able to discover any other reason for such method of pleading; but, because of that circumstance, the claimants, or defendants, have challenged the pleading for misjoinder of two alleged separate causes of action--one to recover real, and the other to recover personal, property in violation of section 94, B. & C.Comp. That section, however is one of the general rules of pleading, and has no application to this proceeding authorized by special statute. The act of February 19, 1903 (Laws 1903, p. 127), contemplates the beginning of but one proceeding to establish by judicial procedure that all of the property of an estate has escheated, and it is not an action to recover the possession thereof. Section 4 of the act reads: "At any time after the death of such person, and whenever the Governor is informed, or has reason to believe, that any such property (real, personal, or mixed) has escheated to the state, he shall direct the district attorney of the judicial district in which such property may be, to file an information"--setting forth the facts. Upon the filing of such information process is to issue requiring all persons interested in the estate to appear and show cause, if any they have, why the title should not vest in this state. By section 7, at any time before the time for answering expires, all persons named in the information may appear and...
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