Steel v. Holladay, 20 Or. 70

Steel v. Holladay

20 Or. 70 | Or. | 1890

Strahan, C. J.

— The only question presented on this appeal is the sufficiency of the complaint. It appears that Joseph Holladay had been the executor of Ben Holladay’s will and for cause was removed from his trust. While he was acting as such executor, the property described in the complaint was sold under a decree of the circuit court of the United States for the district of Oregon, and a time specified in the decree of the federal court within which a redemption might be had. The amount for which the property sold was more than |330,000. Independently of the provision of the Code conferring exclusive jurisdiction on the county courts to settle the accounts of executors and administrators, presently to be noticed, does the complaint state a cause of action? We do not think it does, for two reasons: First, it is not alleged in the complaint that the county court of Multnomah county made any order authorizing or directing the defendant to make such redemption. Manifestly the executor had no power or authority without the direction of the county court, or at least he was under no legal duty to act and apply so large an amount of the estate under his control to the redemption of the stock in question. The values of such stock fluctuate, and at boom prices it might appear to be worth a very large sum, and yet, if subjected to the true test of its actual market value in cash, it might not appear to be so desirable as an investment. At least there is room for differences of opinion; and in the absence of a positive direction by the county court on the subject, the executor might lawfully forbear making the redemption without subjecting himself to the charge of a devastavit.

Second, it does not appear from this complaint that there were any assets in the hands of the executor available and applicable to the purposes of such redemption. The fact that he had property, is not enough. Whether the county court would have ordered it converted into money and *77applied to the exclusive purpose of this redemption without regard to ail other claimants, cannot be known; and to assume that it would have so ordered, and that the money necessary could have been realized by a sale of the property in time to have made the redemption, would be going further to sustain this action than the facts would justify. But there is another objection equally fatal to this complaint. The constitution, § 12, article VII, provides: “The county court shall have the jurisdiction pertaining to probate courts * * * as may be prescribed by law.” And Hill’s Code, § 895, provides: “The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate > that is, * * * 3. To direct and control the conduct and settle the account of executors, administrators, and guardians.” The complaint attempts to charge the defendant with what would have constituted devastavit at common law. It is defined to be a violation of duty by the executor or administrator, such as renders him personally responsible for mischievous consequences, and which the law styles a devastavit; that is, a wasting of the assets; or, to take the definition of the courts, a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets contrary to the duty imposed on him. For a devastavit, the executor or administrator, it is said, must answer out of his own means so far as he had or might have had assets of the deceased. (Schouler’s Exrs. and Admrs. § 383.) To the same effect is 7 Am. and Eng. Ency of Law, 3-16, where the authorities are very fully collated. For a devastavit, an executor or administrator is liable to be called to an account in the county court. (2 Am. Law of Administration, § 534; Schouler’s Exrs. and Admrs. § 383; O’Connor v. Gifford, 6 Dem. R. 71; Stites v. Burch, 5 Paine Ch. 132; Brown v. Brown, 53 Barb. 217; Irwin v. Backus, 25 Cal. 214, 85 Am. Dec. 125.) And the decision of this court in Adams v. Petrain, 11 Or. 304, very fully sustains the exclusive jurisdiction of the county courts in such matters, to the authority of which we fully accede.

Counsel for appellant argued that it was the defendant’s *78duty to have gone into the county court and endeavored to obtain an order for the redemption of this stock, and that his failure to do so constituted a devastavit. But the defendant may have honestly believed that method of procedure to have been impracticable, or that the money could not have been thus raised, or even that the interest of the estate would not have been promoted by the redemption; in either of which, cases, if he honestly exercised his best judgment, he would not be personally responsible for a mistake. Besides this, if other persons interested in the estate differed with Mm on this subject, it was their right to apply to the county court and obtain its direction in relation to the redemption, which, when given, the defendant would have been bound to obey.

It follows that the judgment appealed from must be affirmed.