Latourette v. Nickell

187 P. 621 | Or. | 1920

McBRIDE, C. J.

1. A preliminary question is raised by the appellants as to the sufficiency of the parties. The record shows that Lyman E. Latourette is the trustee named in the will of Willard H. Latourette, as well as the executor, and that Lyman T. Latourette is the son and next of kin of the testator. Both of these have such an interest in the disposition and management of the estate as entitle them to sue out a writ of review when it appears the inferior court has exercised its functions erroneously to their prejudice. Lyman E. Latourette, the executor removed by the order and trustee under the will, -had a clear right to have the proceedings reviewed, and the other petitioner, being a beneficiary under the will and prima facie entitled to administration as next of kin in case of the removal of the executor, would seem to have such an interest. Both are parties to the record to the extent at least that an order of the court, which removes an executor for appealing from an order requiring him to pay a disputed claim, the executor has a right, under the statute, to appeal to the Circuit Court, and in cases where he has a bona fide doubt as to the justice of the claim or the correctness of the decision, it is his duty so to appeal in the interest of the beneficiaries of the estate.

2. We do not now pass upon the sufficiency of the matter in the answer stricken out by the County Court; that will come before the Circuit Court in due course upon the appeal taken from the County Court. It presents a close question and one which the executor had a right to litigate. The right of appeal by the executor from the order directing him to pay the claim is given by Section 1241, L. O. L., and the County Court cannot abridge that right by requiring him to pay under penalty of removal.

3, 4. The petition filed by Mrs. Eandall was not sufficient to show cause for removal of the executor. It is alleged, first, “that since the appointment of said executor, Lyman E. Latourette, * * he has paid out large .sums of money to divers persons without the order of this court.” There is no statute requiring the executor to obtain an order of court to pay money upon approved claims. Section 1241, L. O. L., provides

“When the claim is presented to the executor or administrator, as prescribed in the last section, if he shall be satisfied that the claim thus presented is just, he shall indorse upon it the words ‘examined and approved,’ with the date thereof, and sign the same officially, and shall pay such claim in due course of administration.”

Of course it is the better and more prudent course to obtain an order of the County Court directing the payment of a claim, or otherwise it might happen in the course ¡of administration that the County Court would take a different view as to the justice of the claim from that taken by the executor, and he and his bondsmen find themselves required to make good an amount paid upon an illegal or improper claim, but there is no law absolutely requiring an order of court before paying a claim.

Tbe petition further alleges “that said sums of -money have been wrongfully paid to persons not entitled to the same,” which is a mere legal conclusion, and, further, that said sums of money “should have been paid to and upon the claim of Byron T. Randall,” which is another legal conclusion from the first, and that “large sums of money have been wrongfully paid out upon claims not filed or approved by the court.” Such filing and approval not being required, as before shown. To say that a thing is done or omitted “wrongfully” is usually a mere legal conclusion, a mild vituperative epithet, and adds nothing to the force of a pleading, except in those rare cases where the statute has expressly made that mode of pleading sufficient.

To remove an executor selected by a person to administer and care for his affairs, when he shall be dead, and substitute in his place a stranger, the petition should show, not by legal conclusions, but by explicit instances, if possible, the unlawful acts complained of, and they should certainly go further than to show a mere refusal to pay a disputed claim.

It is apparent from the record here that the whole object of the proceeding was to compel the executor to pay a disputed claim, and that his removal was because he refused to obey the order of the court requiring him to do so. Learned counsel for the appellant in his final summing up practically announces this to be his view. He says:

“The only question here is, Did the court, in making the order of removal, have jurisdiction, that is: legal power to remove him for his failure to perform the order directing him to pay the Randall claim out of the funds of said estate. If the court had the legal right to pass on that question and grant the relief prayed for in Mrs. Randall’s petition, whether he decided right or wrong on that question is not reviewable here if the court had the power to make an order on said petition at all. ’ ’

This statement of the case is correct, but the conclusion is a non sequitur.

The court did have power to hear the petition and to direct the executor to pay the claim, but it did not have power to make a failure to obey the order a cause for removal in the first instance, or to remove him by means of the subsequent order after he had taken an appeal, which he had a perfect right to take.

We have refrained from discussing- the merits of the controversy here, or the sufficiency of the defense set up by the executor in the County Court. These matters are now pending in the Circuit Court upon appeal and should be settled there.

Upon the instant case we are clear that the order of the Circuit Court should be affirmed, and it is so ordered. Affirmed.

Bennett, Harris and Bean, JJ., concur.