In Re Winters' Estate

KELLY, J. On November 7,1936, Herman Winters died intestate in the city of Portland, Multnomah county, Oregon. At the time of his death and for a long time prior thereto he was a resident and inhabitant of Multnomah county, Oregon. On December 2, 1936, pursuant to petition therefor William C. Winters, brother, and Albertina Dahlke, sister of said deceased, were appointed by the probate *639 department of the circuit court as administrator and administratrix, respectively, of the estate of said decedent. On April 28, 1937, a petition was filed in said probate court by certain heirs of said decedent asking for a bill of discovery and the issuance of a citation to said administrator and «administratrix to show cause why they should not be discharged as such officers. After a hearing before said probate department which began on October 6,1937, and during which testimony, covering, when transcribed, 947 pages of typewritten matter, was taken, an order was made by said probate court on February 15,1938, removing said William C. Winters and Albertina Dahlke as administrator and administratrix respectively and appointing A. C. Callan administrator de bonis non of said estate. On March 25, 1938, the transcript on appeal from said last named order was filed in the supreme court. No supersedeas bond has been filed. Appellants’ abstract was filed on April 13, 1938. Appellants’ brief was filed on April 30, 1938. Respondent’s brief was filed on May 19, 1938, and the case was docketed on May 31,1938. On May 17, 1938, the petition under consideration at this time was filed. On May 23, 1938, an order was made, based upon a written stipulation and an appropriate showing, by virtue of which order the time for making an appearance by said A. C. Callan in response to said last named petition was enlarged and extended to and including June 7, 1938. On June 6, 1938, said A. C. Callan filed a demurrer to said petition. On June 17, 1938, appellants filed their brief on said demurrer. On the following conference day, viz: June 21, 1938, said petition, demurrer and brief were submitted to the court. *640 The foregoing chronology of filings and orders in the supreme court is set out to refute any possible suggestion that the record of this case has not received the same prompt and careful attention that is given to other cases. The question here presented is whether the petition states facts which would justify this court in granting the relief sought, namely the appointment by the supreme court of a temporary administrator herein. Two phases of the case are presented, first, that which presents the question whether, in a court having jurisdiction to appoint a special administrator, the facts alleged should be held to warrant such appointment; and, second, whether the supreme court has jurisdiction to try the issues tendered by the petition. As applied to the estate in suit, the facts disclosed by the petition pertinent to the relief sought are: That since his appointment and qualification as administrator said Callan has received up to and including April 23, 1938, the following receipts: February 16-28, 1938 ....................................$ 1,692.80 March, 1938 .................................................... 4,539.11 April 1-23,1938.............................................. 4,246.49 Total ..........................................................$10,478.40 And that during the same period his accounts with the United States National Bank and the First National Bank disclose disbursements totaling $41,326.63. Among these disbursements were the following: Irene Pringle, stenographic service................$ 30.00 Beulah Johnstone, salary.................................. 135.00 A. C. Callan, Postal Telegram.......................... 2.05 Stamps.......................................... 2.00 E. T. Hedlund, Postmaster, stamps.................. 5.00 Norris, Beggs & Simpson, rent room, Oregon Building................................................' 40.00 *641 E. J. Chapman & Co.,- Office furniture purchased by administration............................ 51.00 William Leeb, painting Sherman Hotel.......... 283.75 Kilham Stationery & Printing Co., supplies 9.35 J. W. Maloney, Collector of Internal Social Security Tax, payments Beulah John-stone and Irene Pringle................................ 2.40 Total..........................................................$560.55 ‘ ‘ That Irene Pringle, to whom payments have been made by A. C. Callan, administrator, as shown herein-above for stenographic services, is now and for a period of some months has been an employee of said A. C. Callan in the conduct of a real estate business, Room 321 Oregon Building, Portland, Oregon. That said A. C. Callan has maintained his offices at said Room 321 Oregon Building, Portland, Oregon, for more than two years last past. That Beulah Johnstone, to whom payments for salary have been made by said A. C. Callan, administrator, for some months has been and now is an employee of said A. C. Callan in his said office at the location hereinbefore mentioned. That A. C. Callan has no employees in the conduct of his said real estate business other than said Irene Pringle and Beulah Johnstone.” In said petition extended reference is made to other estates in which A. C. Callan has acted as appraiser and to still other estates in which he has acted as administrator. We quote further from the petition herein: “That the William Leeb to whom payment in the sum of $283.75 was made, as shown hereinbefore, is the sanie William Leeb to whom payments were made by the said A. C. Callan while acting as administrator of the estate of Bridget Ryan, deceased, and is the same William Leeb who has served as appraiser and received fees as shown in Table IV appended hereto. That your petitioners are advised and therefore allege that A. C. Callan did not secure estimates for the *642 painting on the Sherman Hotel; that said work could have been done at a total expense not exceeding $145.00. “That the total number of collections of rent to be made by the said A. C. Callan each month does not exceed the number of eighteen and that the majority thereof are promptly made by the lessees of the properties of said estate, and that the said A. C. Callan, as administrator, does not have the need to occupy any additional office space or to employ any additional stenographic service in the performance of his duties as such administrator. “That your petitioners verily believe and therefore represent to this court that the said A. C. Callan intends to and will use the office of administrator of said estate for the furtherance of his private affairs, for the distribution of personal favors, and payment of various sums of money to persons closely connected with the said A. C. Callan and that the said A. C. Callan will use the said office of administrator of said estate as a means of defraying the expenses for stenographic service, office space, and equipment ordinarily incident to the regular conduct of his business in the City of Portland, State of Oregon, at the location herein-before mentioned.” It will be noted that it is not alleged that Callan has filed any account in the probate court wherein he claims credit for the items above set out. Neither is there any allegation that he has served notice upon any one that he intends to claim credit therefor. Moreover, Mr. Callan has given one undertaking in the sum of $100,000, and also an additional undertaking in the sum of $50,000 for the faithful performance of his duties as administrator. In view of the fact that such undertakings have been given, an issue involving less than $600 presents insufficient ground for holding that irreparable loss to the estate is imminent unless Mr. Callan be removed as administrator de bonis non. *643 The controlling phase of this record, however, lies in the fact that the supreme court is a court of review; and the petition under consideration seeks to invoke the exercise of original jurisdiction. Section 6 of the original Article VII of the Constitution of Oregon provides: “The supreme court shall have jurisdiction only to revise the final decisions of the circuit courts.” Vol. 1, Oregon Code 1930, p. 146. Section 2 of the later Article VII of the Constitution provides: “The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted unless otherwise provided by law. But the supreme court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.” Vol. 1, Oregon Code 1930, p. 130. . The proceedings sought to be initiated by the petition herein is neither mandamus, quo warranto nor habeas corpus. “Proceedings for the administration of the estates of decedents are in rem. Such being their nature, it is clear that an appeal from merely one of the numerous orders, as, for instance, an appeal from an order appointing an administrator, does not transfer the estate to this court and authorize us to make orders concerning its administration. The estate remains in the probate department of the lower court.” In re Workman’s Estate, 156 Or. 333 (65 P. (2d) 1395, 68 P. (2d) 479). It is to the probate department of the circuit court in the first instance that a petition of such a nature as the one in suit must first be presented. The supreme court may review a record made thereon in *644 said probate court, but cannot exercise original jurisdiction in reference thereto. None of the alleged facts upon which the petition in suit is based could have been shown in the record comprising the transcript of testimony herein for the reason that Mr. Callan’s appointment was not made for more than three months after the. taking of such testimony had been concluded. The petition does not state facts justifying any action thereon by this court and for that reason said petition is dismissed. In disposing of this matter the writer has given full effect to the prevailing opinion in In re Workman’s Estate, supra. In that case the writer dissented. He has not changed his views as expressed in his dissent therein; but the court is controlled by the doctrine of the prevailing opinion therein until if, at all, it may be overruled. Band and Belt, JJ., did not participate in this opinion.