In Re Hiller's Estate

135 P.2d 462 | Or. | 1943

Proceedings in the matter of the estate of Joseph Hiller, deceased, by Frank G. Smith against William Gahlsdorf, as administrator. The proceedings relative to setting aside a county court order were transferred to the circuit court from a circuit court order vacating as void a county court order and appointing William Gahlsdorf administratorde bonis non in place of Frank G. Smith, Frank G. Smith appeals.

REVERSED. This is an appeal by Frank G. Smith from an order of the Circuit Court of Marion county vacating as void an order of the county court of Marion county and appointing Wm. Gahlsdorf administrator de bonis non in place of Frank G. Smith, who also claims that office.

Frank G. Smith was the appointed, qualified and acting administrator de bonis non of the estate of Joseph Hiller, deceased. On November 18, 1940, Smith tendered his resignation and petitioned the county court for the appointment of Robert G. Clostermann, who was the German Consul, and who held a power of attorney from the sole heir, a native of Germany. On the same day the county court fixed the fees of the administrator and his attorney, Frank H. Hilton, at $2,000 and by a separate order appointed Clostermann administrator d.b.n. On November 20th, upon petition of relatives (not heirs) of the deceased, vacated both the appointment of Clostermann and the order fixing fees. On November 29th, 1940, Clostermann petitioned for his own appointment and for the allowance of fees to Smith and Hilton for extraordinary services. On the same day the petition was denied, and by a separate order the court accepted the resignation of Smith but refused to approve his accounting which was found to be incomplete. The order also appointed the Pioneer Trust Company as administrator d.b.n. On November 30th, 1940, Smith filed notice of withdrawal of his resignation, asserting that his resignation had been only upon the condition that Clostermann be appointed. On December 7th, 1940, Smith and Clostermann petitioned the county court for an order vacating the appointment of the Pioneer Trust Company and on the same day moved the court for an order transferring to the circuit court as a contested probate matter "the proceedings in connection with the motion for setting aside of certain orders relative to the appointment of the Pioneer Trust Co." Pursuant to statute, O.C.L.A. 13-502, authorizing the transfer of certain contested probate matters from the county court to the circuit court, an order was entered "that the proceedings in this estate relative to the setting aside of an order for the appointment of Pioneer Trust Co. be transferred to the Circuit Court" of Marion county. The order was signed by the county judge. On January 11th, 1941, the Pioneer Trust Company filed a refusal to act as administrator. On January 14th, 1941, Smith filed in the county court a petition for an order vacating the order of November 29th, 1940, by which the resignation of Smith had been accepted and the Pioneer Trust Company appointed. On February 3rd, 1941, the county court, after reciting that Smith "has continued and is willing to serve" and that the Pioneer Trust Company has not qualified but has refused to accept the office, vacated the order of November 29th, 1940, and directed Smith to "continue on" as administrator. On June 14th, 1941, the probate jurisdiction of the county court of Marion county was transferred to the circuit court by virtue of Laws of 1941, p. 701, Chap. 412. On August 5th, 1941, the circuit court, "without notice and without a petition being filed or hearing had to which the administrator was invited or of which he was notified," made an order vacating the county court's order of February 3rd, 1941, and declared it void,

"* * * by reason of the fact that the contested probate matter therein and thereby purportedly disposed of had theretofore been duly transferred to, and then was pending in this court, and said county court and the judge thereof * * * were wholly without jurisdiction, power or authority in the premises."

The order of the circuit court then recited the refusal of the Pioneer Trust Company to act and proceeded to appoint Wm. Gahlsdorf administrator d.b.n. From this order of the circuit court Frank G. Smith, administrator, appeals. The foregoing bare outline of the various proceedings is sufficient to present the only issues which are before us. We quote with approval from respondent's brief: "The record in this proceeding borders the fantastic." The first question for determination is whether the order of February 3rd by the county court was void because of the prior transfer of jurisdiction to the circuit court. The order of February 3rd was not void. The county court retained jurisdiction over all matters in the estate of Joseph Hiller except the contested matter described in the county court's order of transfer. That order transferred only the proceedings "relative to the setting aside of an order for the appointment of Pioneer Trust Co." After the foregoing "contested matter" was transferred from the county court to the circuit court the Pioneer Trust Company filed a formal refusal to accept the appointment. The contest arose by reason of a motion filed by Smith and Clostermann in which the only relief sought was an order setting aside the appointment of the Pioneer Trust Company. Upon the refusal of that company to serve, the only contest which had been transferred was thereby terminated. Smith and Clostermann had no necessity or right to insist upon contesting in the circuit court the appointment of a company which had refused to be appointed.

Although on November 29th, 1940, the county court had accepted Smith's resignation, he had not filed a final account, nor had he been discharged, and the order of February 3rd, 1941, recites that Smith has continued and is willing to serve and directs that he be continued on as administrator d.b.n. On August 5th, 1941, the circuit court, which had then been vested with general probate powers (Laws of 1941, p. 701, Chap. 412) acquired jurisdiction of all proceedings in the matter of the estate of Joseph Hiller, deceased. It then acquired and will continue to have power to determine whether or not the administrator should be removed, to approve or disapprove his acts, to pass upon his compensation and to determine the issues relative to alleged extraordinary services, if any.

But when the circuit court on August 5th, 1941, declared the February 3rd order of the county court to be void, directed Smith to account and appointed Gahlsdorf as administrator d.b.n., Smith was lawfully acting as administrator. The purported effect of the circuit court order of August 5th was to remove him. The order was made, as appears from the abstract, "without notice and without a petition being filed or hearing had to which the administrator was invited or of which he was notified." Respondent agrees that the order was entered by the court "sua sponte." The statute, O.C.L.A., 19-226, provides:

"Whenever it appears probable to the court or judge that any of the causes for removal of an executor or administrator exists or have transpired, as specified in section 19-222, it shall be the duty of such court or judge to cite such executor or administrator to appear and show cause why he should not be removed * * *."

If the court was then of the opinion, or if in the future it shall appear probable, that there is cause for removal, the plain provisions of the statute require that a citation should issue.

The pronouncement of Daniel Webster in the Dartmouth College case must remain the charter of individual liberty and mark the boundary of judicial prerogative. Ours is

"* * * a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial."

The order of August 5th is reversed and the case remanded to the circuit court for such further proceedings in the matter of the estate of Joseph Hiller as may be deemed proper. Neither party shall recover costs.