62 P. 1013 | Or. | 1900
after stating the facts, delivered the opinion of the court.
We will consider but one question, which is decisive of the controversy; that is, whether it was incumbent upon the claimant, who was present at the hearing and directed the prosecution of his demand, to make his case in the first instance, to produce other proof in support of his demand than the allowance of the administrator. In other words, does such allowance make a prima facie case for the claimant, and cast the burden upon the objectors to establish the invalidity of the demand, or must he go further, and prove the claim as in controverted demands generally? The statute prescribes the manner in which a claim against an estate of a deceased person may be presented to the executor or administrator for allowance. When there is any written evidence thereof, it may be demanded, or that its nonproduction be accounted for. If he be satisfied that it is just, he shall indorse upon it the words “Examined and approved,” and pay it in due course of administration. He is required to keep a list of all demands legally exhibited, and file a statement thereof every three months with the county court, designating whether they have been allowed or rejected. If he refuses to allow any such claim, provision is made whereby the creditor may present the same to the county court, which may be there contested before a jury, if desired. By another clause, if the executor or administrator doubts the validity of any claim presented to him, he may agree in writing with the claimant that an order of reference be made by the court or judge thereof concerning the same. Upon filing such agreement the order shall be made accordingly. The referee is empowered to hear and determine the matter, and report thereon to the court, in the same manner and'with like ef
Referring to the statute, to ascertain, if possible, the legal effect of the allowance of the claim by the administrator, it would seem that in making such an allowance he acts as an auditor, merely. True, he has the right to demand the written evidence of any claim presented, or that its nohproduction be accounted for, but this is for the purpose of enabling him to satisfy himself touching the validity of the demand. He must be satisfied in any instance that the claim is just, before he can allow it. If he has any doubts about the matter, provision is made whereby he may agree to refer it to a referee and take his judgment, or he may reject it and require its establishment before the county court, qr otherwise. His allowance shows that he is satisfied that the claim is just, but he has not passed upon it judicially, as he is not invested with judicial functions respecting it. When, however, he has filed a semiannual account, and it has been approved by the court, and he is directed to pay the claim allowed in whole or in part, this constitutes an intermediate or partial settlement, which is prima facie evidence of the correctness of the account, and perhaps of the validity of all claims reported to the court and thus approved. All persons interested in the estate are presumed to have notice of the filing of these semiannual accounts, by reason of the fact that they are required to be filed at certain dates. The passing of the account, however, by the county court, is not conclusive: Cross v. Baskett, 17 Or. 84, 88 (21 Pac. 47); 11 Am. & Eng. Enc. Law (1 ed.), 1310. In the present case the allowed claim was brought to' the attention of the court for the first time at the hearing of the final account, and it has never made any order with reference to it. Now, it is apparent that the county court is not bound to approve a claim simply because it has been allowed by the adminis
