63 P. 689 | Or. | 1901
after stating the case, delivered the opinion of the court.
Two main questions are presented by this appeal: (i) Has the county court, exercising the jurisdiction pertaining to a court of probate, the power to require an executor or administrator, against his will, to- eliminate from the inventory of an estate property listed by him, and which he
The first question, in our opinion, must be answered in the negative. In Gardner v. Gillihan, 20 Or. 598 (27 Pac. 220), it was held that the probate court has no jurisdiction to try a question of title to property as between an administrator and a third person, but that such an adjudication, if necessary, must be had in a court of ordinary jurisdiction. This principle is decisive of the case at bar. However ingeniously it may be stated, the real inquiry presented by the petition, and which the court was asked to decide, was whether the property in dispute belonged to the petitioner or the decedent, and this question can be determined only in a court organized and constituted for the purpose of trying questions of that character, and provided with the necessary machinery therefor. By section 1112, Hill’s Ann. Laws, an executor or administrator is required to file an inventory of all the property of the deceased that shall come to his possession or knowledge, and by section 1100 it is made the duty of the county court, or judge thereof, toi exercise a supervisory control over him, “to' the end that he faithfully and diligently perform the duties of his trust according to law.” Under these provisions the probate court may order an executor or administrator to file an inventory, and may remove him for want thereof: Re Holladay’s Estate, 18 Or. 168 (22 Pac. 750); Marks v. Coats, 37 Or. 609 (62 Pac. 488). In the exercise of this power the court may, perhaps, incidentally pass upon the question of title SO' far as to determine whether the administrator has been unfaithful to his trust in not inventoring property; but it has no power to strike from an inventory property listed by him, where, as in this case, there is a dispute between him and another as to the possession thereof. Such a controversy necessarily involves
It is argued on behalf of the petitioner that, since the county court may require an administrator to file an inventory, it may compel him to file a proper one, and, if necessary, to eliminate therefrom property which does not belong to the estate, and that such an order is not an adjudication of title. But, to determine that the property should not be included in the inventory, the court must of necessity decide that it is not owned by the estate, and its adjudication, therefore, would clearly be one of title, which, as we have seen, is without the jurisdiction of such court. The chief object of an inventory and appraisement is to fix the value and amount of the estate for the purpose of an accounting, and, where an executor or administrator charges himself in his inventory with property as that of the decedent, such inventory, in our opinion, is conclusive upon the probate court, so far as the claims of third persons are concerned, at least until the contrary is made to appear by the judgment of another tribunal having jurisdiction to determine the question of ownership. It is no doubt true that, for the purpose of relieving himself from liability, an executor or administrator may be permitted by the county court to correct his inventory by showing that through a mistake he has, charged himself with property not belonging to the decedent. Where an administrator, however, insists and maintains that the property listed by him was that of his decedent, the claimant must be remitted to another forum to test his alleged title to the property. Any other view would embarrass the probate courts with the trials of titles to' property, which, under our system, should be had in courts of general jurisdiction and under the course of procedure there provided. It follows
