Wilson v. Hendricks

• Decision Date: 07 May 1940
• Citation: 164 Or. 486,102 P.2d 714
• Parties: WILSON <I>v.</I> HENDRICKS
• Court: Oregon Supreme Court

164 Or. 486

102 P.2d 714

WILSONv.

HENDRICKS

Supreme Court of Oregon.

Argued at Pendleton May 7, 1940.

Reversed May 21, 1940.

Courts — Probate matters

1. The county courts, when acting in probate matters, are courts of general jurisdiction, and, whenever their proceedings are called in question collaterally, they are entitled to all the legal presumptions pertaining to the records of courts of superior jurisdiction.

Judgment — Probate courts

2. Orders and decrees of county courts, when acting in probate matters, are not subject to collateral attack except when want of jurisdiction appears upon face of the record.

Executors and administrators — Judgment — Collateral attack

3. In action to recover from deceased's son sum which plaintiff claimed he would have received as compensation for services as executor under will but for wrongful acts of son, where petition alleged that deceased left will in which plaintiff was named as executor, and that county court upon petition of son appointed an administrator of estate of deceased, petition constituted a "collateral attack" on judgment of county court which by its order appointing an administrator necessarily determined that deceased died intestate, and hence proceeding could not be maintained.

Courts — Jurisdiction — Wills

4. In action to recover from deceased's son sum which plaintiff claimed he would have received as compensation for services as executor under will but for wrongful acts of son, where petition alleged that deceased left will in which plaintiff was named as executor, and that county court upon petition of son appointed an administrator of estate of deceased, evidence given by plaintiff in an attempt to establish will was incompetent, since exclusive jurisdiction to prove a will is vested in county courts and, until so proved, a will, generally, is of no effect.

Executors and administrators — Lost will

5. Attorney's allegations that he drew will in which he was named as executor, that testatrix left will in his possession, that, after death of testatrix, attorney was induced to send will to testatrix' son by false representation of son that he had been appointed executor in a later will, and that son refused to return will and had instituted proceeding in county court to administer upon estate as in intestacy, did not entitle attorney to recover from son sum which he claimed he would have received as compensation for services as executor, but attorney's remedy was to offer will for probate as a lost will.

                  See 21 Am. Jur. 438, 816
                

In Banc.

Appeal from Circuit Court, Wallowa County.

R.J. GREEN, Judge.

Action by Max Wilson against D. Boone Hendricks for sum which plaintiff claims he would have earned as compensation for services as executor under a will but for the wrongful acts of the defendant. From a judgment for plaintiff, the defendant appeals.

REVERSED.

A.S. Cooley, of Pendleton, for appellant.

M. Keith Wilson, of Joseph, for respondent.

LUSK, J.

This action was brought to recover from the defendant the sum of $960, which the plaintiff claims he would have earned and received as compensation for services as executor under a will but for the wrongful acts of the defendant. A jury trial resulted in a verdict and judgment for the plaintiff, and defendant appeals.

In the amended complaint, plaintiff, an attorney at law, alleges that in 1928, at Joseph, Wallowa county, Oregon, he drew a will for Alice L. Hendricks by which she disposed of her property and named the plaintiff executor; that she left the will in plaintiff's possession; that Alice L. Hendricks died in August, 1938, in Glendale, California; that the defendant, a son of Alice L. Hendricks, falsely represented to the plaintiff that he had been appointed executor of a later will executed by his mother in California, and, thereafter, at the defendant's request, the plaintiff sent the will in his possession to the defendant; that the plaintiff subsequently learned that no valid will had been drawn in California and defendant had not been appointed executor of any such will, and demanded that defendant return the will which plaintiff had sent to him, but the defendant refused to comply with such demand; that "on or about the 9th day of September, 1938, proceedings were instituted in the County Court of the State of Oregon for Wallowa County, Oregon, to administer upon the Estate of Alice L. Hendricks, deceased, as an intestacy; that A.S. Cooley was appointed as the administrator of the said Estate of Alice L. Hendricks, deceased; that said Estate is now in process of administration in said County and State, and that the value of the property in Wallowa County, Oregon, belonging to the said Estate of Alice L. Hendricks, deceased, has been established as $42,960.00." It is alleged that the wrongful acts of the defendant prevented plaintiff from offering the will which he had drawn for probate in Wallowa county, Oregon, prevented his being appointed executor, and so caused him the loss of $960, the executor's compensation which otherwise he would have earned.

At the close of plaintiff's case the defendant moved for a judgment of involuntary nonsuit, which was denied. This, we think, was error.

Evidence introduced by the plaintiff tended to support the allegations of the amended complaint as to the wrongdoing of the defendant. The defendant's answer admitted the appointment of A.S. Cooley by the county court of Wallowa county as administrator of the estate of Alice L. Hendricks, deceased. In addition, the plaintiff introduced in evidence the petition of F.A. Hendricks, D.B. Hendricks and A.S. Cooley for such appointment. This petition, filed September 9, 1938, sets forth all the facts necessary to give the county court jurisdiction under §§ 11-205, 11-208 and 11-209, Oregon Code 1930. That is to say, it shows that Alice L. Hendricks died in California; that she left no husband surviving her; that she did not leave a last will or testament; that F.A. Hendricks and D.B. Hendricks are sons of the deceased and her sole lineal descendants and heirs; that the deceased left an estate in Wallowa county, Oregon, consisting of real and personal property; that F.A. Hendricks and D.B. Hendricks are nonresidents and therefore not qualified to act as administrators of said estate; that A.S. Cooley is a resident and inhabitant of Umatilla county, Oregon, a citizen of the United States, more than twenty-one years of age, and in all respects competent and qualified to act as administrator of said estate.

On the basis of the facts so averred the county court appointed A.S. Cooley administrator, as alleged in the complaint.

1. It is settled that the county courts of this state, when acting in probate matters, are courts of general jurisdiction, and, whenever their proceedings are called in question collaterally, they are entitled to all the legal presumptions pertaining to the records of courts of superior jurisdiction. One of the most recent announcements of this doctrine is to be found in Woodburn Lodge v. Wilson, 148 Or. 150, 159, 34 P. (2d) 611, where a number of the earlier decisions are cited.

2. It is a principle of equal validity that the orders and decrees of these tribunals are not subject to collateral attack except when the want of jurisdiction appears upon the face of the record: Yeaton v. Barnhart, 78 Or. 249, 257, 150 P. 742, 152 P. 1192; Smith v. Whiting, 55 Or. 393, 400, 106 P. 791; Holmes v. O. & C.R.R. Co., 7 Sawyer 380, 9 Fed. 229. The opinion in the case last cited is an able exposition of this doctrine by Judge Sawyer. The mother of a young man who had come to his death by accident filed a petition in the probate court of Multnomah county praying that letters of administration be granted to one H.W. Davis. In her petition she alleged, among other things, "that deceased was at, or immediately before his death, an inhabitant of said...