In re Partridge's Estate

51 P. 82 | Or. | 1897

Per Curiam.

Error is predicated of the action of the county court in two particulars: First, in the dis-allowance in part of Weister’s claim for salaries from November 1, 1892, to the date of filing his final account; and, second, in removing him as administrator, because the proceeding was not one instituted under the statute for the especial purpose, nor by citation to the administrator to show cause/ against such action.

It is shown by the evidence in the case that a concern styled the “Weister-Meek Company” was formed about January 1, 1893, to engage in the same line of business as that carried on by the Partridge estate, under the administration of Weister. Miss Alice Gibson, the bookkeeper of the Partridge estate as well as for the Weister-Meek Company, says it actually commenced business January 1, 1893, but had no stock until some time in February; and Weister admits that it began in February or some time before. There is but little doubt that Weister was a member of the concern, but he claims that he was only nominally so, and that his name was used by Meek without his consent. It is certain, however, that he was its sole manager from its inception until the remaining goods of the estate were sold at auction, June 26, 1893, and that Meek had but little, if anything, to do with it. The business of the company was opened up and carried on in the same building as that occupied by the Partridge estate, and the same help employed in the one as in the other; that is to say, the two concerns occupied the same building, and were managed and conducted by one person and his employees each working upon a single salary. These salaries and the rental for the building thus occupied were all paid out of the funds of the Partridge estate; but, to compensate the estate for services rendered the WeisterMeek Company by said manager and employees, and for the use of the building from the time of its inception, Weister charged the company with $150, and gave the estate credit for a like amount. The alleged expenses for salaries was $250 per month, except when a stenographer was employed, in which event it was more, and the rental was $85 per month. An attempt was made to show the relative .amount of business transacted by each concern, which was estimated to be about 75 per cent, by the estate, and 25 per cent, by the company. After December 20 the administrator was engaged solely in closing out.the remnant of stock on hand, and collecting outstanding claims and accounts, by direction of the court, for the purpose of winding up the business and settling the estate. The claim for salaries is stated in the account in a lump sum, but no vouchers were filed therewith nor produced at the trial. Weister claimed a salary for his own services of $100 per month, but it does not appear to whom, or what amount to each, the balance of the expense for salaries was paid, nor is there anything to show the necessity or reasonableness thereof. In this state of the record, the county court allowed Weister $810 in addition to his regular statutory commission of $384.23 upon the appraised value of the estate, as reasonable compensation for extraordinary services as such administrator, and disallowed the balance of his claim.

Ought we to disturb this conclusion? The appellant has not shown himself entitled to more. The statute requires that the final account of an administrator shall contain a detailed statement of the amount of money received and expended by him, from whom received, and to whom paid, and refers to vouchers for such payments: Hill’s Ann. Laws, § 1173. As it pertains to the alleged expenses paid on account of salaries, as with other alleged expenses, the account filed fails utterly in a compliance with the statute, nor does the proof help the administrator except as it pertains to his individual salary. Beyond this feature, it was the duty of the administrator to state with particularity his claim for extra compensation, so that the court, as well as those interested in the estate, may be informed fully of the nature of the service rendered, and of its necessity and value to the estate, and be thereby enabled to distinguish the items which are a proper charge from those that may be unjust and improper: Steel v. Holladay, 20 Or. 462 (26 Pac. 562). In May v. Green, 75 Ala. 167, it is said that “proof, moreover, should have been made of each special service with its peculiar value, and the whole should not have been aggregated by mere estimate without being itemized.” Under these authorities, and in the light of the facts of the case, with the large discretionary power lodged with the county court in determining the amount and reasonableness of charges as extra compensation, we are unable to say that its conclusion is unjust to the administrator; and we are constrained to permit the decree in that respect to stand.

As relating to the second contention, the statute provides that an executor or administrator may be removed, upon application of an heir, legatee, devisee, creditor, or other person interested in the estate, for unfaithfulness or neglect of his trust to the probable loss of the applicant; or the court may, for like cause, upon its own motion, remove, such officer; but in either instance he must be cited to appear and show cause why such action should not be taken, and is thereby accorded a hearing in .the premises: Hill’s Ann. Laws §§ 1094, 1100. In the case at bar there was no such citation and. no hearing had upon the precise question. But the administrator was before the court upon his own application to be discharged. It appeared, however, that the estate had not been fully administered, there being many accounts due the estate which were yet uncollected; and there was much evidence adduced showing maladministration on the part of Weister. He, as administrator of the estate, sold goods to himself, as manager of the Weister-Meek Company; and these he again sold at a profit to the company of more than 100 per cent. During the time the two concerns were engaged in businéss in the same building, there, was sold to the company goods for which it paid the estate $360, which were again sold by the company to its customers for $742.67; and when the goods belonging to the estate were finally disposed of at auction, it seems that large quantities of them found their way into the WeisterMeek Company’s business, since which time Weister has continued as manager, and received a salary direct from the company. An attempt is made to explain this action of the administrator by testimony that the company sold on credit, while it purchased from the estate for cash, and that, through the agency of the company, the estate was enabled to dispose of a larger amount of its stock, and at a greater profit, than it could otherwise have done; but, considering all, the administrator has not satisfactorily justified his management of the estate. He has had much time within which to have collected and adjusted the outstanding accounts without satisfactory results, and, in view of his past conduct, it is reasonably inferable that his continuance in office would probably be followed by loss to interested parties. Whether or not the order of removal was proper, as a primary act, we shall not determine; but having been made upon what would appear to be sufficient cause, though not in a proceeding instituted directly for that purpose, with citation to him and an opportunity to be heard upon the precise issue, this court will not now disturb it (Succession of Glover [La.] 9 So. 97); and the decree of the court below will therefore be affirmed in so far as it affirms the decree of the county court. The court costs attending the appeal in both instances should be borne by the estate.

Affirmed.