Dunham v. Siglin
64 P. 661
Or.
1901
Check Treatment
Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

1. It is maintained by the defendants’ counsel that the plaintiff’s demand is an ordinary claim against a decedent’s estate for the recovery of money, to award which the county court possesses plenary power, and, this being so, a court of equity has no jurisdiction of the *295subject-matter, but if it should be held that the latter court was the proper forum for the enforcement of the plaintiff’s alleged private right, his failure to aver that the county court can not afford the requisite relief renders his complaint vulnerable to the objection that it did not state facts sufficient to constitute a cause of suit, and hence no error was committed in dismissing it. The transcript shows that the plaintiff served upon the administratrix a written demand for the assignment to him of said judgment, and notified her that unless she complied with his request he should attempt to,hold her personally liable for the sum due him ; that she indorsed upon the demand her rejection thereof, and signed the same in her representative capacity. But it does not appear that plaintiff ever filed it in the county court or asked its allowance thereby. We do not understand that the demand adverted to is in the nature of an ordinary claim against the decedent’s estate, to be paid pro rata with the claims of creditors in due course of administration, but, rather, a preliminary step to a suit by a cestui que trust to impress upon the estate of a decedent a lien for a trust fund still intact, whereby he seeks to recover the entire fund.

The defendants’ counsel, in support of the principle for which they contend, place much reliance upon the decision rendered in the case of Winkle v. Winkle, 8 Or. 193, in which it was held that, the statute having conferred on the county court exclusive jurisdiction in all matters pertaining to the transfer of the title to personal property belonging to a decedent’s estate, a court of equity was without jurisdiction in respect to such property. The principal question involved in that case was the right of an administrator, without an order therefor from the county court, to transfer the title to personal property belonging to the decedent’s estate; and the rule there *296announced being applicable only to tangible property (Weider v. Osborn, 20 Or. 307, 25 Pac. 715), and the said judgment being intangible and in the nature of a chose in action, except that it was capable of immediate enforcement without suit or action, the case relied upon is not in point. In Weill v. Clark’s Estate, 9 Or. 387, it was held that a county court was without jurisdiction to enforce a trust; such power having been lodged exclusively in a court of equity. So, too, in Jasper v. Jasper, 17 Or. 590 (22 Pac. 152), a testator, by his will having provided for the payment of his debts and made certain bequests, gave the residue of his property to executors, who were directed to pay from the income of the residuary property such sums of money as might be necessary for the support of his widow and minor children. The executors, having paid the debts and distributed the bequests, were ordered by the county court to pay the widow a certain sum for her support; but it was held that, the executors having discharged the duty imposed upon them under the terms of the will, a trust attached in their hands to the residuary property, thereby depriving the county court of jurisdiction in the matter, and that a court of equity only was adequate to grant the relief demanded.

■ In Harris v. Douglas, 64 Ill. 466, it was held that a court of equity will not ordinarily assume jurisdiction of claims against a decedent’s estate until after their allowance by the county court, but, if any special reason can be assigned why that court can not afford the requisite relief, equity will intervene. When, however, a testator by his will makes the payment of his debts a charge ■upon a portion of his estate, a court of equity will have jurisdiction without first establishing the indebtedness in a court of law, as it is an original ground of equity jurisdiction to declare and enforce trusts. Judge Wobrner, in his exhaustive work on American Law of Administra*297tion (2 eel.), vol. 1, p. *344, in speaking of the power conferred upon probate courts, says : “ The right or title of the decedent to property claimed by the executor or administrator against third persons, or by third persons against him, as well as claims of third persons against creditors, heirs, legatees, devisees, or distributees, must, if an adjudication become necessary, be tried in courts of general jurisdiction, unless such jurisdiction be exclusively conferred on probate courts.” The legislative assembly of this state has not conferred upon the county court power to determine a controversy in the instances specified by the learned author, and, it having been alleged in the complaint that the judgment in question was assigned to Siglin in trust for the plaintiff, the complaint stated facts sufficient to constitute a cause of suit, and to show that the county court was powerless to grant the relief demanded; and, the notice served upon the administratrix not being an ordinary claim for the payment of money from the assets of the decedent’s estate, it was not necessary to aver any want of jurisdiction of that court, and hence a court of equity has jurisdiction of the subject-matter.

2. The controversy on the merits relates to the amount due Siglin from Lackstrom when he assigned the judgment to him, — the plaintiff claiming that it was $50 ; and the defendant, $250. The evidence shows that prior to such assignment the plaintiff, as surety, had become liable to pay the sum of $300 in consequence of Lackstrom’s default, and that the latter had sustained financial reverses ; and it appears the only property he possessed was the judgment in question, which Siglin, as his attorney, had secured, and for which service Lackstrom owed him the sum of $50. J. F. Hall, as plaintiff’s witness, testified that in August, 1894, Siglin notified him, as at*298torney for Mrs. Ames and Mr. Thibault, that he intended to have an execution issued on said judgment, saying that he had an interest therein for some fee, which must be paid at once, and in answer to the inquiry as to how much must be paid him, he replied, “$50” telling the witness that plaintiff also had an interest in the judgment, and that, after he had been paid the sum demanded, any arrangements he could make with the plaintiff in respect to postponing the payment of the judgment would be satisfactory ; that the witness saw the plaintiff, and having secured from him an extension of time for such payment, the judgment debtors gave him $50, which he paid to Siglin. Thereafter he received a letter of which the following is a copy :—

“Marshfield, Oregon, March 6, 1895.

“J. F. Hall, Esq.

“Dear Sir: H. W. Dunham has an interest in the Thibault-Ames judgment, and, as he is compelled to pay a security debt for Lackstrom at once, he wants one hand to wash the other, and directs me to proceed and collect, which I shall do unless the judgment is satisfied within ten days.

“Very respectfully,

“J. M. Siglin.”

. He again called upon Siglin, who told him that, acting under the plaintiff’s direction, he had caused an. execution to be issued, but that any arrangement he might make with plaintiff in relation to the payment of the judgment would be satisfactory to him ; that he thereupon saw the plaintiff, who agreed upon another extension, whereupon Siglin recalled the execution. Hall’s testimony in relation to these extensions is .corroborated by that of the plaintiff.

T. S. Minot, an attorney for the defendants, appearing as their witness, testified that when the assignment *299was made lie was a student in Siglin’s office ; that Siglin was. retained by Lackstrom in an action brought by him against one Hansen, and performed service for him which was reasonably worth $125, and in another case, of Lackstrom v. O’ Connell, lie performed services of the reasonable value of $50, and other services which he rendered for Lackstrom, amounting in all to the sum of $250, to pay which Lackstrom assigned the judgment to him. No books belonging to Siglin were offered in evidence to corroborate the testimony of the last witness, and we think Lackstrom owed Siglin only $50 at the time the judgment was assigned; for at that time the judgment, interest, and costs so assigned, amounted only to $264.87, and, if Siglin was to receive $250 thereof, $14.87 only would remain for the plaintiff; and we can not think that this small sum was such an interest in the judgment as would seriously embarrass the judgment debtors, or cause them to seek such extensions.

3. The money paid in discharging the judgment being deposited with the county clerk of Coos County subject to the order of the administratrix, who unlawfully claims the same, the specific fund is capable of identification ; and,-this being so, a court of equity will follow and award it to the cestui que trust: Ferchen v. Arndt, 26 Or. 121 (46 Am. St. Rep. 603, 37 Pac. 161, 29 L. R. A. 664); Muhlenberg v. Northwest Trust Co. 26 Or. 132 (38 Pac. 932, 29 L. R. A. 667); Rockwell v. Portland Sav. Bank, 31 Or. 431 (50 Pac. 566); In re Assignment of Bank of Oregon, 32 Or. 84 (51 Pac. 87); Shute v. Hinman, 34 Or. 578 (56 Pac. 412, 58 Pac. 882, 47 L. R. A. 265). It follows that the decree of the court below must be reversed, and a decree will be entered here awarding plaintiff the relief demanded ; the costs in both courts to be paid by the estate. Reversed.