704 P.2d 1165 | Or. Ct. App. | 1985
Plaintiff has petitioned for Supreme Court review of our decision which affirmed the trial court’s dismissal of plaintiffs action against the residuary legatee of an estate. 73 Or App 714, 699 P2d 1168 (1985). We treat the petition as a request for reconsideration, ORAP 10.10, and grant it, but we adhere to our former opinion.
Plaintiff argues for the first time on reconsideration that the estate was closed prematurely and that plaintiff therefore had no other choice but to seek restitution from the residuary legatee. Plaintiff asserts that we failed to recognize that, under ORS 115.145, a creditor has 30 days within which to file either a request for summary determination or an action against the personal representative and that the personal representative “arbitrarily and inexplicably” closed the estate four days earlier than it should have, thereby cutting off plaintiffs rights.
In our former opinion, we did note, and we reiterate, that plaintiff has never, before now, challenged the closing of the estate or alleged that it was closed improperly. Plaintiff has been emphatic all along, in fact, “in the strongest possible terms, [that] this is not an estate claim.” Plaintiffs argument regarding the closing of the estate cannot be raised now.
Petition for reconsideration granted; former opinion adhered to.