Re Neil Estate, 214 P. 338

214 P. 338 | Or. | 1923

McBRIDE, C. J.

It is first claimed that this appeal should be dismissed for the reason that Garrette M. Julien, Marie Julien, Ida Martin, John Quirk, St. Joseph’s Catholic Church of Salem, Oregon, and Patrick Ryan, who appeared to contest the identity and right of Michael O’Neill, have not been served with notice of appeal, but we hold that these parties are not adverse parties within the meaning of Section 550 of the Code. An adverse party, within the meaning of this section, is a party whose interest and relation to the decree appealed from is in conflict with the modification or reversal sought by the appeal. The parties not served did not see fit themselves to appeal but abandoned the controversy and no modification or reversal here could affect them unfavorably. On the contrary, should the decree of the lower court be reversed, such a result would affect them favorably in that they would have still further opportunity to contest the claim of Michael O’Neill as the heir of the estate: Watson v. Noonday Mining Co., 37 Or. 287 (55 Pac. 867, 58 Pac. 36, 60 Pac. 994).

We are of the opinion that the evidence indicates to a moral certainty that the petitioner is the sole heir of the deceased and that the brother and sisters mentioned in the will died during the decedent’s lifetime, and while as a matter of precaution it is perhaps proper for the executor to secure a final decree of this court to protect himself hereafter there is no good reason to suppose that other claimants will ever present themselves. Under these circumstances it was proper for the petitioner to demand a final accounting and upon such accounting to have the residue of the estate turned over to him, as prayed for.

It is claimed that the inheritance tax has not been paid and the pleadings and testimony leave this in some doubt", but this is not any bar to a final accounting, as upon such accounting the court can require the inheritance tax to be paid before making a final disposition of the estate, and it will no doubt do so. The inheritance tax is just as much a part of the expense of the estate as any other claim, and it is admitted that the executor has sufficient funds in bis bands to pay all expenses. If it should turn out otherwise the County Court possesses ample authority to adjudicate the amount of the tax and to require the executor to pay it or to compel him to make a further accounting, as the nature of the circumstances may require.

We see no reason why this case should be further litigated and the order of the Circuit Court is affirmed. No costs will be taxed against appellant on this appeal, as it seems to have been only a matter of ordinary caution that he should have the sanction of this court before turning over the property.

Affirmed.