De Bow v. Wollenberg, 96 P. 536

De Bow v. Wollenberg

96 P. 536 | Or. | 1908

Lead Opinion

*416Opinion by

Mr. Commissioner King.

1. The first point demanding attention relates to the correctness of the ruling of the court in denying the motion to suppress the deposition of Rachel De Bow. It appears that the deposition alluded to was returned, opened, and filed June 19, 1904, and the taking of the testimony before the referee was closed on November 18th, following; that about two months later, by order of the court, the cause was transferred to Clackamas County for final hearing on the evidence taken, the entire record of which, including the depositions, was filed in the circuit court of that county on March 22, 1905. The motion to suppress was filed April 17th, following, while the cause was heard in May, 1905. The method provided by our Code, by which objections may be made to depositions taken and offered in evidence in suits in equity, reads:

“Upon the trial either party may object to the reading of a deposition or any part thereof, when offered by the other, because the witness is incompetent, or the testimony is so, or irrelevant, and not otherwise. All other objections to depositions shall be taken by written exceptions filed with the clerk within ten days from the closing of the testimony, and before the first day of the term next following thereto, and may be heard and decided by the court or judge thereof at any time thereafter before the trial of the suit”: Section 408, B. & C. Comp.

The objections made to the depositions do not go to the competency of the witness or to the competency or relevancy of her testimony to the matter in issue, by reason of which the first paragraph of this section of the Code can have no application to the points urged. The objections not having been made within 10 days from the closing of the testimony, as required by the section of the statute quoted, it is clear that the motion came too late, and the denial thereof was properly made.

2. Considering the case upon its merits, the first question with which we are confronted relates to the suffi*417ciency of the deeds and bill of sale from Zulkind Krotki to Herman Marks, upon which the defendants rely. The execution of the instruments given by Krotki and receipt thereof by Marks is not questioned, nor is it denied that Marks ultimately paid $1,000 thereon, as provided in the deeds, but urged that the instruments were executed through fraud imposed upon the grantor; that he was too old and infirm properly to understand the result of the transaction; that it was intended by him not to convey the legal title, but given for the purpose of enabling the heirs to more conveniently settle up the estate of his brother, Shmul Krotki, deceased, known in this country and in this case as “Samuel Marks”; and that the deeds in the form given, with the provision therein referring to the payment of the sum of money to Aurbock, not having been delivered to the grantee, and the additional condition named therein not having been accepted by the grantee until after the grantor’s death, were void, by reason of which the estate must be distributed among the heirs in accordance with the laws of Oregon, as if none of the instruments had been executed. Under the conclusion here reached, the determination of only the last point suggested becomes necessary.

It is practically conceded by appellants that, after Zulkind Krotki learned of the death of his brother, Samuel Marks, he gave to his daughter, Rachel De Bow, what purported to be a power of attorney, and sent her and her brother to this country for the purpose of settling up the estate and distributing the proceeds among all of his children, share and share alike; that Asher Marks met Mrs. De Bow at Portland, but, finding the power of attorney not to be in the form desired, asked her to return to her home in Russia and procure deeds to the realty and a bill of sale to the personalty, to which he may be entitled from the estate, to which she *418acceded and took with her the instruments prepared in due form; that the instruments were prepared here by Asher Marks in the form signed, except as to the words, “with condition that one thousand dollars ($1,000) with legal interest be paid to Dan. Aurbock of Dobrzhyn,” which were added by the vendor before executing them. After the execution of the deeds and bill of sale they were deposited with the United States consul in Russia, to be delivered to Herman Marks upon the payment of the $1,000, as specified. Six days after placing the instruments with the consul, Krotki died, after which the grantee received notice of the deeds having been deposited with the United States consul, and was informed of the conditions prescribed for their delivery. The vendee at first refused to pay the $1,000, insisting that Aurbock was not an heir and not justly entitled to the money. After a delay of nearly one year, during which time he refused to remit the sum required to Aurbock, the money was forwarded to the consul, on the receipt of which the deeds and bill of sale were sent to the grantee.

3. It is maintained by the defendants that it was understood, before the instruments were prepared and taken to Russia for execution, that $1,000 was to be paid to Aurbock, and that, it having been fully understood, and the deeds and bill of sale duly executed and placed with the consul, to be forwarded to the grantee, before the death of the grantor the title passed as of the date of the delivery of the instruments to the consul, citing Hoffmire v. Martin, 29 Or. 240 (45 Pac. 754), with authorities from other states, in support of this position; but, whatever the correct rule under such a state of facts may be, it can have no application here, for the contention of defendants on this point is not only rebutted by the great preponderance of the testimony adduced by plaintiff, but also unsupported by the evidence offered on behalf of the defendants. When inter*419rogated concerning this feature of the case, Rachel De Bow testified that she met Asher Marks in Portland, at her son’s residence, three days after her arrival there; that he called three or four times, whereupon it was agreed that she would return to Dobrzhyn, Russia, and have her father execute the papers prepared by Asher Marks. She further testified:

“Q. Was there anything said at any of the meetings between yourself and Asher Marks at Portland about the $1,000 to be paid to Daniel Aurbock under said authority or direction in writing from said Zulkind Krotki which you took to Portland with you and showed to Asher Marks, and, if so, what was said about it?

A. In that respect, Asher Marks asked me once for what reason Daniel Aurbock, being no heir, had to receive the sum of $1,000. I answered that he had to receive it according to the wish of Zulkind Krotki, who loved him (Daniel Aurbock) for his having nursed him during his illness; but Asher Marks did not agree and promised to pay said sum of $1,000 in my hands.

Q. Was there anything said at any of said meetings in Portland about any advances of money on your share in said estate of Samuel Marks, deceased, and, if so, at which of said meetings, and what was said about it?

A. At one of those meetings, Asher Marks promised that, after having received the papers with Zulkind Krbtki’s signature, he would send such sum of money for division as advance, that therefrom would be deducted out of my share the sum of $1,000 for Daniel Aurbock.

Q. State, if you know, whether said $1,000, due to Daniel Aurbock under said authority or direction in writing, or said amount of money advanced on your share of the estate of Samuel Marks, deceased, or either of them, were ever paid or advanced, and, if so, state when and under what circumstances?

A. Still before Asher Marks having received the papers with the signature of Zulkind Krotki, Herman Marks sent from America through the American Consulate at Warsaw, to my order, the sum of $1,000, as an advance on my share, whicfi I duly received and paid in full to Daniel Aurbock.

*420Q. State, if you know, whether or not said Zulkind Krotki ever received any money or property, or other consideration from Asher Marks, or the defendant, Herman Marks, or from any other person for or on account of his interest in the estate of Samuel Marks, or for said bill of sale or deed or either of them, and, if so, when, and how much, and from whom?

A. For or on account of his interest in the estate of Samuel Marks, or for said bill of sale and deed, Zulkind has never received any money, property, or consideration either of Asher Marks or of .Herman Marks, or of any other person.

Q. State, if' you know, whether or not the defendant Herman Marks ever paid or advanced any money or property or other thing of value in the course of or on account of any of the transactions you have mentioned, and, if so, when, how much, and to whom?

A. As aforesaid, Herman Marks sent only, to my order, the sum of $1,000, through the American Consulate at Warsaw.

Q. State, if you know, whether said Zulkind Krotki left any estate at his death, and, if so, of what did it consist, and what did it amount to?

A. After the death of Zulkind Krotki, remained positively no estate.”

It thus appears from Mrs. De Bow’s testimony that this $1,000, when paid, should come out of her share of the property, thus requiring her to pay the sum, and not the grantee. This theory is supported by the circumstance that she did finally receipt to Herman Marks for the money which she subsequently paid to the party designated in the deeds. The receipt given reads:

“I, the undersigned Rachel Dybow, from Doberzyn, near Drueacan, I receiving from the hands of the Hon. Consul of the United States, in Warsaw, the sum in cash of ($1,000) one thousand dollars, as a part which falls to me and owing to me from Herman Marks of Roseburg, Oregon, in United States of America, after the death of Zulkindzn Krutkim, from Doberzyinia. I reserve the right in future to obtain the inheritance above mentioned. Warsaw, 8d December, 1895.

lier

Witness : Mariam Wolowsky. Ruchla X Dybow.”

mark

*421Daniel Aurbock also executed a receipt for the same sum, relinquishing any further claims in the matter. The letters from Asher Marks to Rachel De Bow also indicate that it was understood he was to receive the deeds and bill of sale before any money should be paid, and that he would send the money as soon as he received the papers, but not before.

Adolph Marks, who was present and acted as interpreter during the conversation between Mrs. De Bow and Asher Marks, inter alia, testifies:

“Q. Was anything said about the payment of this $1,000 to Daniel Aurbock between the time of filing this petition on August 19, 1895, and .the time the county court made an order denying it on January 11, 1896?

A. It was previous we had a conversation in regard to Daniel Aurbock. He is a son-in-law of my sister’s. In the papers he had to go to Warsaw once or twice in regard to those, to see the consul. It seems like father made in the papers he sent before with my sister that he was to get the first $1,000, and the others to divide up, and Asher was determined, and I understand that Daniel Aurbock should not get a cent.

Q. What did Asher say about it?

_ A. He was not any more angry than I was. He says: ‘He shan’t get it.’ And I says: ‘That is right, Asher. He has no right to that $1,000 at all.’ We had several conversations in regard to Daniel Aurbock.

Q. How many times did you ever hear Asher Marks say that Daniel Aurbock should not get any $1,000, or any part of it?

A. I cannot enumerate them, several times in conversations that we had, and I sanctioned with him that Daniel Aurbock should not get it.

Q. State whether or not you heard him make this statement after the 13th day of September, 1894, and before the papers came.

A. Oh, yes, at different times.”

These statements are in effect supported by many of the facts and circumstances surrounding the transaction. In fact, an examination of the entire record so clearly demonstrates that no understanding or agree*422ment', either expressly or impliedly, was entered into prior to the execution of the deeds, to the effect that the $1,000 specified therein was to be paid either as a part of the consideration therefor or as a part of the moneys to come out of the general fund belonging to the heirs, as to leave but little, if any, doubt on the question. The question then arises: Is a deed executed under such circumstances sufficient to convey any interest of the grantor? It is the general rule that, where a deed is executed and placed in the possession of a third person for delivery to the grantee without the grantor reserving to himself any control over it, and it is delivered accordingly, the title will pass to such grantee at the time of the last delivery, even though not delivered to him until after the grantor’s death (Hoffmire v. Martin, 29 Or. 240, 243: 45 Pac. 754) ; and if necessary for the purpose of protecting the grantee from intervening rights, or when either justice or necessity requires, the title relates back to the date of the first delivery: 16 Cyc. 588; Shirley’s Lessee v. Ayers, 14 Ohio, 307 (45 Am. Dec. 546) ; Whitfield v. Harris, 48 Miss. 710; McDonald v. Huff, 77 Cal. 279 (19 Pac. 499) ; Dettmer v. Behrens, 106 Iowa, 585 (76 N. W. 853: 68 Am. St. Rep. 326) ; Van Tassel v. Burger, 119 App. Div. 509 (104 N. Y. Supp. 273) ; Nolan v. Otney, 75 Kan. 311 (9 L. R. A., (N. S.), 317). But the defendants are not in a position to avail themselves of this rule, for the written instruments, through which title to the property involved is asserted, were deposited upon condition that they should not be delivered unless the grantee named therein should first pay to Daniel Aurbock $1,000, to which added condition the grantee had not assented at the time of the grantor’s death. This provision is not only contained in the deeds and bill of sale deposited with the consul, but is in accordance with the direction of the grantor, as evidenced by the fact that the consul refused to deliver *423the papers until this condition was first complied with.

It will be remembered that, when the deeds were drawn and delivered to Rachel De Bow, the requirement that $1,000 should first be paid to Aurbock was not included therein, and' that, while the subject was mentioned, this sum was not to come out of "the general funds. of the estate, or oht of the grantee’s interest therein, but was to be paid out of her share. To this feature Zulkind Krotki refused to accede and deposited the deeds with the requirement that this sum should first be paid direct to Aurbock, and at the time of the execution of the papers and delivery - to the United States Cónsul, the vendee had not agreed to this new proposition, and did not consent thereto until about one year after Krotki’s death, and, as indicated by the testimony quoted, declared he would not do so, and, as further shown by his letters to Mrs. De Bow, he had at all times demanded that the deeds be first turned over to him before the payment of any money thereon, all of which he had indicated he was to pay to her as an advancement on her share of the estate out of which she was to pay Aurbock.

4. The binding force and effectiveness of a deed must necessarily depend upon the mutual assent of the parties to it, without which there can be no delivery: Tyler v. Cate, 29 Or. 515, 521 (45 Pac. 800).

5. The vendor when depositing a deed can, without awaiting the vendee’s consent, annex such conditions thereto as he may see fit (Walkins v. Sommerville, 80 Vt. 48: 66 Atl. 893), and the vendee is entitled to a delivery thereof only upon a strict compliance with the requirements constituting the conditions precedent to the transfer of the title: Hilgar v. Miller, 42 Or. 552, 556 (72 Pac. 319).

6. The tender of the papers through the consul, for delivery on condition that the requirements there expressed be first complied with, was such an offer as *424could have been withdrawn by Krotki at any time before the acceptance by the. grantee of the terms offered, and in this manner he could, at any time before the acceptance, have prevented the delivery of the instruments, and, while no particular formalities are essential to constitute a proper delivery, it is necessary that the grantor should expressly or impliedly consent thereto: Swank v. Swank, 37 Or. 439, 442 (61 Pac. 846). This privilege, however, was intercepted in this instance by his unforeseen death six days after the papers were delivered to the consul. In this respect the transaction is unlike one where all the terms and conditions are agreed upon, understood, and consented to, between the parties, before the death of the grantor, in which class of cases the deed has been held sufficient to transfer the title, even though the death of the grantor occurred before the actual delivery of the instruments to the grantee: Lindley v. Groff, 37 Minn. 338 (34 N. W. 26) ; Dettmer v. Behrens, 106 Iowa, 585 (76 N. W. 583: 68 Am. St. Rep. 326) ; Bronx Inv. Co. v. Nat. Bank, 47 Wash. 566 (92 Pac. 380) ; Van Tassel v. Burger, 119 App. Div. 509 (104 N. Y. Supp. 273).

7. In the case under consideration, the minds of the contracting parties had not met at the time of the vendor’s demise, leaving at his death no agreement between them. His power to contract and to offer to convey the legal title either in trust or otherwise ended, accordingly, at the moment of his demise: Bishop, Contracts (2 ed.), § 588. The power to recall the instruments before acceptance of the new condition annexed to them having been with the grantor, of which power he was, through no fault of his own, deprived before acceptance of his proffered terms, the subsequent acceptance thereof was ineffectual: Bishop, Contracts (2 ed.) §§78, 79; 13 Cyc. 565, 569; Taft v. Taft, 59 Mich. 185 (26 N. W. 426: 60 Am. Rep. 291) ; McIntyre v. McIntyre, 147 Mich. 365 (110 N. W. 960) ; Stockwell v. Williams, *42568 N. H. 75 (41 Atl. 973) ; Soward v. Moss, 59 Neb. 71 (80 N. W. 268) ; Byars v. Spencer, 101 Ill. 429, 433 (40 Am. Rep. 212) ; Campbell v. Thomas, 42 Wis. 437 (24 Am. Rep. 427, 434). No other conclusion is deducible, unless the instruments through which title is asserted by defendants can be held testamentary in character; but we think it clear that they can have no effect as a testamentary disposition of property, as there is nothing in the record indicating that it was thus intended: Sappingfield v. King, 49 Or. 102 (89 Pac. 142); Taft v. Taft, 59 Mich. 185 (26 N. W. 426: 60 Am. Rep. 291) ; Emmons v. Harding, 162 Ind. 154, 162 (70 N. E. 142) ; O’Day v. Meadows, 194 Mo. 588 (92 S. W. 637: 112 Am. St. Rep. 542).

8. The provision for the payment of the money specified in the deeds was clearly intended as a condition precedent to the delivery thereof. The consul, although in one sense intended as the agent of both parties, until the acceptance by the grantee of the conditions under which the papers were to be delivered, was the agent only of the grantor (Soward v. Moss, 59 Neb. 71: 80 N. W. 268), and was acting in that capacity for the purpose of enforcing a full compliance with the terms upon which the delivery was to be made before permitting the title to pass. This agency, not being coupled with an interest, necessarily ceased on the death of the principal (1 Am. & Eng. Enc. Law (2 ed.), 1222), and the force and effect of the instruments deposited with him by the decedent terminated with such agency. Taking, therefore, the view most favorable to defendants, under the facts disclosed, the instruments through which defendants claim title to the realty and personalty are void and of no effect, and no title to any interest of Zulkind Krotki, deceased, in either the real or personal property involved, has passed to Herman Marks. The estate must, accordingly, be distributed among the heirs as *426if no transactions had been had or papers executed between them.

Again, we are constrained to hold, after a careful examination of the evidence adduced, that it' was the intention of all concerned, and was so insisted at the time the papers were prepared and signed by Krotki and placed with the consul, that the deeds and bill of sale were intended simply to take the place of the power of attorney first given, with the expectation that it would more conveniently aid in the distribution of the estate. The strong contention of counsel for defendants, however, is upon the claim that the property was purchased outright for an express consideration; but the evidence so clearly supports the theory that the vendor did not so understand the transaction, and the circumstances bearing upon the matter so forcibly point to an intended conveyance only in trust for the purpose of aiding in the distribution of the estate, that we deem a discussion of the evidence bearing on these points unnecessary.

9. Another matter urged in this connection is that the plaintiffs cannot insist upon the deeds being decreed void without returning, or offering to return, the money paid them. In this respect it is claimed by plaintiffs that this money was paid, whatever it may be—the exact amount of which is not clear—as a part of the proceeds to which the heirs were entitled from funds on hand for distribution, and, as indicated in the evidence, we think it clearly to have been intended for that purpose and so understood by all concerned. This places the case in a much different position than appears to have been the status of the cases cited and relied upon by the defense, in which the plaintiffs there sought a cancellation of deeds which were voidable, but not void, while at the same time retaining moneys paid on the purchase price and not intended as an advancement on any interest they may have had in any estate. Here, *427so far as appears from the record, plaintiffs are entitled to all the moneys received in part payment on their distributive shares in the estate under process of settlement, and the most that could be said is that it may have been prematurely advanced. Defendants therefore are not injured, for, whether the moneys received were prematurely advanced or not, defendants appear to have retained, and still have in their possession, as administrators, the estate remaining, and the moneys advanced, as indicated by the learned court below, may be deducted from the sums to which eách may be entitled on the final distribution of the estate.

10. The $1,000. paid to Aurbock is a matter with which the plaintiffs are not here concerned, for, under the conclusion reached, the payment of this sum was Unauthorized, for which plaintiffs are not responsible. It was voluntarily paid by defendants to Aurbock through Rachel De Bow, his agent, for the purpose of procuring possession of void deeds, and .any error, whether in fact or in law, committed by them in so doing, is one for adjustment between the person advancing the money and the person receiving it, and if a remedy exists it is against the person receiving the money, and not the plaintiffs. The court found that this item should be included with other sums paid, “for which the estate of Asher Marks is entitled to credit in any future accounting between plaintiffs and said estate,” in which finding plaintiffs appear to acquiesce. Neither the plaintiffs nor defendants are therefore in a position to complain as to this holding, for which reason the decree of the court below in reference thereto should not be disturbed.

11. It is next maintained that plaintiffs are barred by laches, in respect to which it is asserted that 13 years have elapsed since the transaction, and nearly 10 years before suit was commenced; that the deeds were *428recorded, and Herman. Marks was in possession openly and notoriously, claiming to be the owner of the property with full knowledge by plaintiffs, who, by their actions, led him to believe he was the owner thereof. But these assertions are not sustained by the pleadings or proof. The record clearly rebuts this contention. While Herman Marks denies in his answer any knowledge of the circumstances of the power of attorney first given, or that Asher Marks had any knowledge or notice at any time of Krotki’s intention or purpose to have his interest in the Samuel Marks estate distributed among his children or heirs, or that the power of attorney was executed for that purpose, his testimony, taken together with other evidence adduced, makes it clear chat he had full knowledge of these facts, and that Asher Marks had the deeds and bill of sale made in Herman Marks’ name in place of his own only as a matter of convenience. It is neither alleged nor proved that Herman Marks entered into possession of, or exercised control or ownership over, the property. Its entire management and control appears to have remained in the administrators of the estate. In fact, it is disclosed throughout that the plaintiffs and other heirs deemed the estate under process of administration and under control of the administrator thereof, until after the death of Asher Marks, which occurred August 31, 1899, after which it was learned by them for the first time that Herman Marks claimed the property under the deeds and bill of sale. Thiso suit was brought on January 10, 1902, less than two and one-half years after the death of Asher Marks. The deeds and bill of sale were executed by Krotki October 10, 1894, and received by Marks and recorded December 26, 1895, about seven years before the commencement of this suit, in place of nearly ten years, as urged, and only since the death of Asher Marks, less than two and one-half years *429from the commencement of the suit, does it appear that Herman Marks asserted a claim in his own right to the property, and this claim does not appear to have been brought to the attention of plaintiffs until within a short time before the institution of the suit. The defense of laches is clearly unsupported by any facts sufficient to justify its application to any feature of this case: Wills v. Nehalem Coal Co. 52 Or. 70, (96 Pac. 528; Harrison v. Rice, 78 Neb. 654 (111 N. W. 594: 114 N. W. 151).

12. It is next argued that the court erred in taxing the costs against defendants individually, and maintained that, since the suit was brought against defendants as administrators, the costs could be taxed against them only in that capacity. The general rule is that a personal representative who sues or defends in any proceeding which he can bring or defend in such capacity is not personally liable for costs if he fails in his contest: 18 Cyc. 1085; 8 Enc. PI. & Pr. 730. If the rule was otherwise, few executors, administrators, or guardians would incur the risk of a suit, and estates would suffer accordingly by reason of their rights not being properly enforced: Smith’s Estate, 11 Pa. Co. Ct. R. 448. "This rule, however, is subject to some exceptions, for instance, where it may clearly appear that the litigant is not acting in good faith, or where he knowingly and intentionally subjects the opposition to expenses additional to what otherwise would be necessary to protect his rights in the controversy, or where the suit is vexatious or wanton, or known by him to be groundless: Taylor v. Whitmore, 35 Mich. 97; Hill v. Mitchell, 40 Mich. 389; Reynolds v. Carter, 32 Ala. 444; Pennypacker’s Appeal, 57 Pa. 114. Defendants cite Fleming v. Carson, 37 Or. 252, 255 (62 Pac. 374) in support of their contention; but while the court there held that, as a general rule, the costs should be charged to the trust fund, “either where the suit is *430necessary or beneficial to both parties, or where both are in fault,” it further observes that where a party has been guilty of misconduct, rendering necessary a resort to legal proceedings, the costs may, as a' punishment, be imposed upon one party, only, and merely held that, as there was nothing in the record tending to show misconduct on the part of the defendant, the court erred in taxing the costs against him personally.

13. In the case under consideration the court found, in effect, that defendant Herman Marks took the deeds and bill of sale with actual knowledge of the purpose for which they were given, knowing at all times that they were intended to convey to him the title to the property in trust only, and in this finding we concur. It is therefore probable that the costs were taxed against him individually, for the reason that it appeared that the defendant named had caused years of unnecessary delay, litigation, and expense to defendants by defending in this suit without first using the care and inquiry which ordinary prudence would have suggested.

14. Since the record strongly tends to support this conclusion, and the taxation of costs are reviewable only for an abuse of discretion, we do not feel justified in disturbing the decree of the court in this respect, and think the same rule as applied by the court below with respect to this defendant is applicable to the costs in this court.

15. But the learned court below evidently overlooked the distinction between WoIIenberg’s position in this respect and that of Herman Marks. The litigation was made necessary by the acts of Marks, and Wollenberg was a proper defendant, if not a necessary one, and, accordingly, through no fault of his, was made a party defendant. It was proper, therefore, that he should appear and defend in the suit in order that the interests of the estate might be properly guarded, and, the record failing to show bad faith on his part in this respect, he *431should not, although unsuccessful, be chargeable individually with any costs of the proceeding. The costs in both courts should be taxed against Herman Marks individually, and against H. Wollenberg in his representative capacity.

[97 Pac. 717.]

With this slight modification, the decree of the court below should be affirmed.

Affirmed: Modified as to Costs.

Rehearing

Decided October 20, 1908.

On Petition for Eehearing.

Opinion by

Mr. Commissioner King.

16. Defendants in their petition for rehearing strongly urge as error the affirmance of that part of the decree of the circuit court holding, in. effect, that Asher Marks, deceased, was not a member of the'partnership of S. Marks and H. Wollenberg. In the preparation of the former opinion we were of the impression that a statement to that effect appeared only in the findings of fact of the court below, all of which are not necessarily sustained by an affirmance of the decree (Gentry v. Pacific Live Stock Co. 45 Or. 233: 77 Pac. 115), and accordingly passed the question unnoticed; but our attention is called to the fact that the same statement appears in the decree as affirmed, which feature we inadvertently overlooked, making a consideration thereof necessary.

The issue involving this point is made by the affirmative averments in the answer, but no. relief asked in respect thereto; and while this issue, by each of the parties, is treated as one of which a court of equity may take cognizance, we are cited to no authority therefor, and its right to do so is extremely doubtful. The pleadings do not state, nor purport to state, facts sufficient to indicate why the county court, in the exer*432eise of its probate jurisdiction, cannot, in respect to the point urged, afford the desired relief, without which averment jurisdiction thereof cannot be assumed in this proceeding. The question relative to the respective interests of the heirs is not before us. Moreover the fact that plaintiffs are the heirs of Zulkind Krotki, deceased, is not only clearly established by evidence offered on behalf of plaintiffs, but stands unquestioned by defendants. The interest, however, to which each, as such heir, may be entitled in the personal estate of decedent, or proceeds thereof, so long as the estate remains unsettled, can only arise in, and be determined by, the county court on the final distribution of such estate.

17. The title to all realty, upon the death of its owner, passes directly to the heirs of the decedent as tenants in common, subject only to the rights of the executor or administrator to possession for payment of debts: Sections 1147, 1221, B. & C. Comp.; Clark v. Bundy, 29 Or. 190, 193 (44 Pac. 282) ; Noon's Estate, 49 Or. 286, 291 (88 Pac. 673: 90 Pac. 673). But the personal property by operation of law goes to the administrator or executor, in respect to which the county court has exclusive jurisdiction: Winkle v. Winkle, 8 Or. 193; State v. O’Day, 41 Or. 495, 500 (69 Pac. 542).

18. The question, therefore, as to what constitutes the personal estate in which the heirs may be entitled to share, including their respective interests therein, is a matter for the county court’s determination; and it was not the intention in the opinion that a decree be entered in respect thereto. The purpose intended thereby was to set aside and declare null and void the instruments alluded to; and we understand this to have been the object sought by this suit, as indicated by the averments of the complaint, including the prayer thereof.

The legal effect of our opinion, as well as of the decree to be entered under it, is to leave the status of *433the parties with respect to each other undetermined, the adjudication of which reverts to the county court as if no pretended transfers had ever been made by Krotki to Marks, and as if no suit had been brought in respect thereto, holding merely that the instruments here involved are void and of no effect, and directing that they be set aside accordingly.

Other points are also urged in the petition for rehearing, but they were fully considered and determined in the opinion, and after a re-examinafion thereof we are satisfied with the conclusions there reached.

With this modification,, the petition should be denied.

Decree Modified: Rehearing Denied.