Irvine v. Beck, 125 P. 832

Irvine v. Beck

125 P. 832 | Or. | 1912

Opinion by

Mr. Chief Justice Eakin.

1. First, it is important to determine what issues are before us. If the claim had been disallowed by the executor, then the claimant’s remedy would have been to present it to the county court for allowance, which would have been tried thereafter as a law action, under Section 1241, L. O. L. See Wilkes v. Cornelius, 21 Or. 341 (23 Pac. 473).

2. The claim having been allowed by the executor, he should have so reported it in his first semi-annual account, or in his final account, if no previous one had been made.

3. The allowance of the claim by the executor is only his approval of it, and does not bind the heirs or creditors, who have an opportunity to contest it upon the settlement of the final account, under Sections 1285 and 1286, L. O. L. See In re Chamber’s Estate, 38 Or. 131 (62 Pac. 1013). However, the situation here is somewhat anomalous. The executor reports it as not allowed, but the court tried it as though it had been allowed and objected to by the heirs; and we will so consider it, treating the objections of the heirs, filed April 30, 1910, as objections to the final account.

*5974. It is said in Roach’s Estate, 50 Or. 179, 190 (92 Pac. 118, 122), by Mr. Justice Moore: “Any person interested in the estate may, on or before the day so designated [for settling the final account], file his objections to the final account or to any item thereof ‘specifying the particulars of such objections.’ Section 1203, B. & C. Comp. (Section 1286, L. O. L.) The requirement which the statute thus imposes to indicate the precise exceptions relied upon was evidently designed, in the system of pleading, as an answer, controverting the statement of facts contained in the final account, which is treated as a complaint, and such objections are apparently intended to impart notice to the personal representative of the decedent, so as to enable him to prepare for a trial of the issues thus framed. * * The court’s examination of the facts challenged by the exception is therefore limited to the particular specification set forth in the objections interposed.” Under this rule there was but one issue tendered by the objections to the account, viz., that the claimant had been fully settled with by decedent in her lifetime for the services claimed for in the bill filed April 22, 1910, thus admitting the employment, the service rendered, and its reasonable value; and even if we consider that the burden of proof on that issue was upon the claimant, the evidence is undisputed that she was not settled with or paid anything thereon.

5. However, defendant has acquiesced in the decree of the county court and can claim no greater decree here.

The decree of the circuit court will be reversed, and one entered here allowing the defendant’s claim in the sum of $802, upon which shall be credited the sum of $224, the amount of the note due from her to the estate; interest being computed from the date of the note until January 7, 1911, the date of the decree of the county court. Reversed : Decree Rendered.