| Or. | May 20, 1924
Lead Opinion
On motion to dismiss appeals. Prior to June 3, 1919, separate proceedings had been
On the latter date C. R. Wade, who was then, and for some time had been, acting as attorney for Pomeroy as such administrator, was elected county judge of Coos County, and on June 9, 1919, qualified and assumed the duties of his office.
Thereafter on account of the direct interest of the county judge in the administration proceedings mentioned, an order was made by the County Court transferring the same from the County Court to the Circuit Court for Coos County, and thereupon the proceedings were duly certified to the Circuit Court in and for Coos County, as authorized by Section 939, Or. L.
After the proceedings were so certified to the Circuit Court, the controversies attempted to be brought here by appeal, were heard and determined by that court. The heirs of the decedents, appellants here, filed formal objections to the final account of the administrator. The latter filed a claim against the estate for personal services and also a claim as administrator. To both of such claims the heirs objected in writing. The parties stipulated in writing that the objections to the final account and the disputes arising upon the pecuniary claims of Pomeroy against the estates might be consolidated for the purposes of a trial and be heard together.
A trial was had before the court without a jury, and upon consideration of the evidence, the court gave
The respondent Pomeroy moves to dismiss both appeals upon the ground that this court is without jurisdiction to entertain the same. Respondent contends that the Circuit Court, in hearing and determining the litigated matters above described, was performing the functions of a county judge, and was not exercising the jurisdiction and authority of a Circuit Court, and that therefore the right of appeal, if any, possessed by appellants, should have been prosecuted from the County Court to the Circuit Court, and not from the Circuit Court to this court.
The county judge being directly interested in the proceedings in question, the transfer of the same from the County Court to the Circuit Court was authorized by Section 939, Or. L., in the following terms:
“Any proceedings commenced in the county court, whether actions at law or proceedings in probate, in which the county judge is a party or directly interested, may be certified to the circuit court, in and for the county in which the proceedings may be pending, where the action at law shall be proceeded with as upon appeal from the county to the circuit court; if the matter be a matter in probate, then all the original papers and proceedings had shall be certified to the circuit court, and the judge of said court shall' proceed in the manner now prescribed for the county judge, had the same remained in said court; * * ”
The transfer authorized by the statute was complete upon certification of the proceedings to the Circuit Court, pursuant to the order of the county judge,
It is at once apparent that the statute contemplates and provides that upon removal of the proceedings to the Circuit Court, the latter court shall be vested with full jurisdiction in respect thereto, and that the control and jurisdiction of the County Court over such proceedings shall cease and terminate. This result comports with the prevailing rule upon removal of a cause from one court to another: 15 C. J. 1150.
A final order made in a cause or proceeding after it has been transferred under the authority of that portion of Section 939, Or. L., above set forth, is the judgment or decree of the Circuit Court, and any party to such a judgment or decree may appeal therefrom to this court.
It follows that the motion to dismiss the appeals should be overruled, and it is so ordered.
Motion to Dismiss Appeals Overruled.
Opinion on the Merits
On the Merits.
The objectors invoke the provisions of the following statute:
“If any executor or administrator shall refuse to allow any claim or demand against the deceased, after the same may have been exhibited to him in accordance with the provisions of this act, said claimant may present his claim to the county court for allowance * * . The court shall have power to hear and determine in a summary manner all demands against any estate agreeably to the provisions of this act, and which have been so rejected by the executor or administrator * * ; provided, that no claim which shall*186 have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant.” Or. L., § 1241.
This statute has been applied by this court many times: Quinn v. Gross, 24 Or. 147" court="Or." date_filed="1893-06-19" href="https://app.midpage.ai/document/quinn-v-gross-6896338?utm_source=webapp" opinion_id="6896338">24 Or. 147 (33 Pac. 535); Harding v. Grim, 25 Or. 506" court="Or." date_filed="1894-05-03" href="https://app.midpage.ai/document/harding-v-grim-6896606?utm_source=webapp" opinion_id="6896606">25 Or. 506 (36 Pac. 634); Bull v. Payne, 47 Or. 580" court="Or." date_filed="1906-03-20" href="https://app.midpage.ai/document/bull-v-payne-6900086?utm_source=webapp" opinion_id="6900086">47 Or. 580 (84 Pac. 697); Tharp v. Jackson, 85 Or. 78" court="Or." date_filed="1917-06-12" href="https://app.midpage.ai/document/tharp-v-jackson-6905829?utm_source=webapp" opinion_id="6905829">85 Or. 78 (165 Pac. 585, 1173); Godfrey v. Howes, 91 Or. 98" court="Or." date_filed="1919-02-11" href="https://app.midpage.ai/document/godfrey-v-howes-6906541?utm_source=webapp" opinion_id="6906541">91 Or. 98 (178 Pac. 388); Re Estate of Banzer, 106 Or. 654" court="Or." date_filed="1923-03-20" href="https://app.midpage.ai/document/re-estate-of-banzer-6907850?utm_source=webapp" opinion_id="6907850">106 Or. 654 (213 Pac. 406); Franklin v. Northrup, 107 Or. 537" court="Or." date_filed="1923-05-22" href="https://app.midpage.ai/document/franklin-v-northrup-6907904?utm_source=webapp" opinion_id="6907904">107 Or. 537 (215 Pac. 494); Uhler v. Harbaugh (Or.), 224 P. 89" court="Or." date_filed="1924-03-25" href="https://app.midpage.ai/document/uhler-v-harbaugh-6908150?utm_source=webapp" opinion_id="6908150">224 Pac. 89. However, the foregoing decisions, because they relate to proof of claims that were rejected by the executor or administrator, as provided in the statute quoted above, do not apply to this case. Pomeroy’s claims have never been rejected.
The questions of law arising upon this appeal are well settled in our jurisdiction. For the reason that the real questions in this cause relate to facts, we have devoted much time to a careful reading of the record before us.
The estates consist of a dairy farm, together with milch cows and young stock. Objections arise from the fact that the administrator continued to conduct the dairy instead of immediately bringing the administration to a close. The claims objected to, other than Pomeroy’s unpaid claim for wages, were paid from proceeds realized, in a great measure, from the sale of milk and cream produced by the dairy as carried on by him, as administrator. No real property was sold, and the inventoried list of stock was kept complete.
The heirs object, among other things, to a claim on account of moneys advanced by the administrator
The administrator is an unmarried man. When he toók charge of the estate in his official capacity he employed his married brother as a farm hand. This brother’s wife, who is a sister of Elizabeth Bethel, deceased, did the cooking and housekeeping on the farm. Later, another brother married Helen Bethel, one of the three heirs, and she is one of the two objectors. Anne Bethel, the original objector, did not appeal.
Pursuant to stipulation of the attorneys of the interested parties and the order of the court, W. H. Wann, a certified public accountant, audited the records and accounts of Ralph R. Pomeroy, administrator of the estates of George H. Bethel and Elizabeth Bethel, deceased, for the period extending from July 19, 1918, to January 12, 1921, being the time covered by the administrator’s first, second, third, final, and supplemental final reports. The report and evidence of the accountant is too lengthy to print. He states in his report, among other things:
“The records were found to be in fair condition. On account of heavy disbursements I spent some time analyzing same for irregularity * * So far as can be determined, the funds have been scrupulously accounted for, and I have checked from the bank records, bills and statements, as well as to use any outside information obtainable * *
*188 “Taking up the matter of losses or gains during the administratorship, I have made a fairly accurate showing of the results.
“Revenue, * * $14,050.44.”
This revenue is made up of cream and milk to the amount of $10,354.52, cattle, hogs and produce, $2,836.02, and a number of other items.
The expenditures total $9,481.58, leaving a profit of $4,568.86.
It is the duty of an administrator to close up the affairs of an estate as soon as practicable; but the law does not contemplate that he should sacrifice the interests of the estate in order to bring it to a close.
The administrator avers in his report — and is sustained by the record — that the affairs of the estate have been administered faithfully, honestly, and with ability. He states that in July, 1918, during the "World War, when he commenced the administration, the property of the estate could not have been sold except at great sacrifice; that the appraised value of the estate at that time was little more than $14,000, a fair and reasonable appraisement, and he is well supported by the record in stating that the present value thereof is at least $25,000. He was appointed administrator of the estates during harvest time and in the midst of the dairy season. The resources and revenues of the estates had been mingled. There were 49 cows in milk, about 40 of which belonged to Elizabeth Bethel’s estate. There was upon the dairy farm, when Elizabeth Bethel died, an uncompleted barn in course of construction, upon which had been expended the sum of $2,000. This was completed by the administrator. At the solicitation of the heirs, he purchased, for the sum of $800, from the funds
The court did not err in approving the administrator’s accounts.
The administrator is an expert butter maker, and from March 1, 1908, was employed to take charge of the Bethel farm, including its herd of cattle consisting of about 49 cows and some young stock. It was his duty to manage the farm, milk the cows, care for the stock and make the butter, at the agreed price of $50 per month. He worked continuously at that wage for six years. He testifies that from March 1, 1914, until his appointment as administrator he was to receive a wage of $60 per month. Of the amount due him for labor, he has received payment in the sum of $923. He further testifies that after his appointment as administrator he continued to labor on the dairy farm, as before, and that in all these years of service he was never absent from the farm a single night except on official business.
The objectors do not question the fact of the many years’ valuable service rendered by Pomeroy to the Bethels. They do not deny that he toiled early and late, and for many hours every day, year after year, and for the period of time stated. They do assert, in effect, that while Pomeroy was toiling for the wel
The statute of limitations cannot avail the heirs. Pomeroy’s claim is not barred by any law.
The claims for wages for more than 10 years prior to Pomeroy’s appointment as administrator, and for his extraordinary services rendered while acting in that capacity, together with the proofs offered in support thereof, have been subjected to the most careful scrutiny; and we are convinced that he is entitled to the full amount awarded him by the trial court for wages and commissions.
The court below saw the witnesses, heard them testify, noted their appearance and demeanor upon the witness-stand, and was familiar with the entire situation. Under the peculiar circumstances existing in the instant case, the findings of the learned trial judge are entitled to weight.
We conclude that this case should be affirmed. It is so ordered. Affirmed.