Rostel v. Morat

19 Or. 181 | Or. | 1890

StrahaN, J.,

delivered the opinion of the court.

The proceedings in this cause seem to be so irregular as .well as prolix that it is difficult to determine just what the rights of the parties really are. There have been an unnecessary number of papers filed, many of which were copied into the journal in the county court when there w~s no occasion for it. And where the record ought to be full and explicit, it is frequently wanting in particularity.

The appellant’s contention is, that the county court is a court of record, Art. VII, section 1, constitution, and that whatever judgment or decrees it may enter ought to be justified by the record in the particular case; that probate jurisdiction is conferred on the court by the constitution, Art. VII, section 12, and by the Code, section 895, and the manner in which it shall be exercised is fixed by the various provisions of the law applicable to the particular subject; that section 1170, Hill’s Code, makes it the duty of an executor or administrator, within six months from the date of the notice of his appointment, and every six months thereafter until the administration is completed and he is discharged from his trust, to render a verified account and file the same with the clerk, showing the enumerated particulars in said section mentioned, and that section 1172 makes it the duty of the court, at the first term after the filing of the first semi-annual account, to ascertain and determine if the estate be sufficient to satisfy the claims presented and allowed by the executor or administrator within the first six months or any succeeding six months thereafter, after paying the funeral charges and expenses of administration, and if so shall so order and direct; but if the estate be insufficient for that purpose, it shall ascertain what per centum of such claims it is sufficient to satisfy, and order and direct accordingly. These sections prescribe the duty of the executor or administrator and the court as well.

The executor in this case filed no semi-annual accounts. Each was a final account. He also took it upon himself to pay claims without any order or directions from the court whatever; and while it is believed that this is and has been the usual custom among executors and administrators in this State, it is not the course prescribed by law. By paying claims in advance of an order by the court, the executor or administrator simply takes the risk of securing the court’s approval of his action when his accounts and vouchers shall be presented, and this Morat failed to do. On the contrary, the court disapproved of every account filed by him, and made an order requiring him to pay Hostel’s claim in full. The executor published two notices of the hearing of each of his final accounts, one of which notices was given by order of the court.

On each of these occasions when his accounts were disallowed by the court, I think the executor might either have appealed from the order of disallowance, or he might have filed another account by way of amendment which would have met the views of the court. He saw proper to adopt the latter course, but was unable to obtain the court's sanction to his proceedings.

Having said this much in reference to the proceedings in the county court, we come to an examination of the action of the circuit court which resulted adversely to the executor. Amongst other things the circuit court found that the said executor was chargeable on account of the assets of said estate which came into his hands with the sum of §109.83, which is properly applicable to the payment of said claim, and should be applied in pursuance of the judgment of the .county court heretofore rendered and entered in this behalf. Whether this finding is correct, it is impossible for us to determine in the present state of this record. Its correctness depends altogether on whether or not the defendant was properly charged by the court with' the par value of the bank stock or the amount for which he reported he sold it, and whether or not the credit side of the account is correct, and that depends on whether or not the credits which he claims ought to have been allowed. There is a dispute and considerable uncertainty about it. The court below might have heard evidence on this subject, which we are not permitted to hear. Nor have we any satisfactory way of determining the reasonableness of many of these charges

While we are not entirely satisfied that the judgment appealed from is right, we are unable to say affirmatively that it is wrong; and inasmuch as the defendant, by failing to observe the proper course of procedure in the county court, has contributed very much to produce this uncertainty, we do not think we are called on to interfere.

If the defendant had promptly filed his semi-annual account at the end of six months from the date of the notice of his appointment, and each six months thereafter, and had paid no claims until the court determined the order of their priority, and then paid them upon the order of the court, its orders would have fully and completely protected him against any claim not thus ordered to be paid.

Though not strictly necessary, I think this case ought not to be dismissed without a word respecting the manner in which the order or decree may be enforced against the defendant. Section 1078, Hill’s Code, in defining the methods of procedure in probate proceedings, provides: ‘ ‘The mode of proceeding is in the nature of that in a suit in equity as distinguished from an action at law.” And section 406 provides: “The court or judge thereof may enforce an order or decree other than for the payment of money by punishing the party refusing or neglecting to comply therewith as for a contempt. ” These two sections taken together limit the power of both the circuit and county courts, where a decree is for the payment of money, to an execution for its enforcement and render subdivision 5, section 650, inapplicable in such case.

The decree of the circuit court must be affirmed.