Dray v. Bloch, 29 Or. 347

Dray v. Bloch

29 Or. 347 | Or. | 1896

Opinion by

Mr. Justice Wolverton.

1. Two propositions are insisted on by appellant. The first is that the county court was without jurisdiction to approve the “ supplemental account,” by reason of having proceeded without notice to the creditors and heirs of the estate; and the second that the court was without power to adjudicate touching matters of personal and private concern between M. S. Bloch, individually, and Henry Dray. In Cross v. Baskett, 17 Or. 84 (21 Pac. 47,) it was held that “a decree approving a final account is not conclusive, but prima facie evidence only. Besides, after an executor has settled an estate after notice to all persons interested, * * * the burden of proving error ought to be shifted to those who assail it.” The statute provides, Hill’s Code, § 1173, that-“Upon the filing of the final account, the court or judge thereof shall make an order directing notice thereof to be given in the same manner as the notice of an appointment of an executor or administrator, and appoint a day at some term subsequent thereto for the hearing of objections to such final account, and the settlement thereof,” and section 1181 provides: “ Before the time appointed for the hearing and settlement of a final account, the executor or administrator shall file with the clerk a copy of the notice thereof, with the proper proof of its publication as *352directed.” It is apparent that before a final account can be heard, adjusted, and settled, so as to be of binding force upon the creditors, heirs, and legatees, these statutes must be observed, and unless they are the court is without competent authority to make a decree allowing or disallowing the account.

But after the term during which the decree is entered approving and settling the account the court is without jurisdiction to change or modify it: Harvey’s Heirs v. Wait, 10 Or. 117. It being a statutory prerequisite that a valid final decree should be preceded by an order fixing a day of hearing, notice and proof thereof, although it is said that the decree is prima facie evidence only of the correctness of the account as thereby settled and allowed, (Cross v. Baskett, 17 Or. 84, 21 Pac. 47,) yet it would work an absolute abrogation of these statutory formalities if it were permissible after the term at which the decree was entered to file a “ supplementary account,” which is in itself a radical modification of the final account, and for the court, upon an ex parte showing of the kind, and without the slightest observance of any such statutory regulations, to pass and enter a decree approving and settling the same, which must needs take the place of the regular final decree. It was surely not intended by the legislature that these minute statutory directions should be thus obviated, and we know of no rule of practice by which they may be disregarded. They are by no means a dead letter, and ought not to be shorn of vitality *353by methods of indirection. If it is at all permissible for the county court after the term to set aside, vacate, or modify its decree settling a final account, (as touching which we pass no opinion,) it certainly could not be done without a hearing, and some sufficient prior notice thereof to the parties interested, so that they may have their day in court. The appellant having had no notice of the filing of the “ supplemental account,” nor of the hearing touching it, the court was for this reason, if for no other, without competent authority to pass the account or enter the decree.

2. The second proposition must also be resolved in favor of appellant. The county court, sitting in probate, is not competent to try issues which may arise out of differences existing between the administrator and the heirs or claimants in their individual capacities. The settlement of estates of deceased persons can in no way be effected by such differences, and hence it is not within the province of a probate court to take cognizance of them. They should be determined in the courts specially constituted and competent to adjudicate concerning them. So it is that the administrator cannot claim an offset of a debt due him against a creditor or distributee of the estate: Bradshaw's Appeal, 3 Grant’s Cas. (Pa.), 109; Standley v. Langley, 25 Miss. 252; Gardner v. Gillihan, 20 Or. 601 (27 Pac. 220); McLaughlin v. Barnes, 12 Wash. 373 (41 Pac. 62.) These authorities are conclusive of Bloch’s claim to offset his individual account with Henry Dray,, against *354Dray’s claim or distributive share of the residue. The attorneys’ and referee’s fees and costs in the circuit court charged against Henry Dray individually would appear, if valid claims, to be more properly chargeable against the estate. It is certainly not shown how Henry Dray has incurred these liabilities individually, either to the estate or to M. S. Bloch.

3. But an executor or administrator may rerain the whole or a part of a legacy or distributive share in discharge or satisfaction of a debt due from the legatee or distributee to the estate: Smith v. Kearney, 2 Barb. 547; Springer’s Appeal, 29 Pa. St. 208; Tinkham v. Smith, 56 Vt. 187. So that if the referee’s fees, or the expenses denominated “ costs in circuit court,” are a part of the costs adjudged against Henry Dray and in favor of the estate on the former appeal, they might very properly be set off by the administrator against Henry Dray’s distributive share of the estate and probably against his claim. The decree of the court below will be reversed, and the “ supplemental account ” disallowed. Reversed.