In re Holladay's Estate

Strahan, J. The late Ben Holladay, by his last will, named his brother Joseph Holladay as executor. His right to act as such was contested, and finally sustained in this court. Holladay v. Holladay, 16 Or. 147. Thereafter Esther Holladay instituted this proceeding in the county court of Multnomah county to secure the removal of Joseph Holladay as such executor. The petition for the removal is very lengthy, and charges in detail: (1) Neglect in the management of the estate of Ben Holladay; (2) failure and neglect to file an inventory of the property of said estate within the time required by law; (B) incompatibility of Holladay’s relations to the estate with his duties as executor of the will; (4) incapacity to perform the duties of executor, caused by age and mental infirmity. Joseph Holladay filed an answer denying the allegations of the petition. Upon the issues being completed, a large amount of evidence was taken, which accompanies the transcript. Upon the hearing in the county court, the prayer of the petition was granted, and a decree entered removing Joseph Holladay from his trust as executor, which was affirmed on appeal to the circuit court, from which last-named decree this appeal is taken. Upon the removal of Joseph Holladay, as such executor, James Steel was duly appointed administrator with the will annexed of the estate of Ben Holladay, deceased. 1. The first question demanding attention is the alleged neglect of Joseph Holladay in failing to redeem certain prbperty belonging to said estate which had been sold under a decree of the circuit court of the United States for the district of Oregon. This property consisted of 10,000 shares of the capital stock of the Oregon Real Estate Company, and was sold for $333,000. This sale occurred on the thirty-first day of May, 1888, and the court by its decree approving said sale allowed time for redemption until the first day of February, 1889. Much evidence was taken by both parties on the question of Joseph Holladay’s ability to borrow money sufficient to make the redemption of said property; the various bonuses that were demanded of him [170] by the bankers and brokers; the nature of the security he was required to give, etc. Mr. D. P. Thompson, in a letter dated October 18, 1889, was willing to undertake to raise the necessary amount for a bonus of $20,000. Mr. Wilcox demanded a bonus of $50,000. Other persons, with whom Mr. Holladay tried to negotiate a loan, demanded as much. Each of these parties required as security a transfer of ■the stock to be redeemed, and, in addition thereto, an assignment of Mr. Holladay’s decree of foreclosure, against Ben Holladay in his life-time, for more than $340,000. The evidence taken tends to prove that Mr. Holladay was disposed to submit to the most extravagant terms demanded, and that the negotiations failed in the end through no fault of his. It is unnecessary to discuss these various negotiations in detail. It is a sufficient answer to all the charges to say that it does not appear that the estate of Ben Holladay had any available funds to make the redemption, and Joseph Holladay was not bound, by the duties of his office, to put up his individual credit or securities to secure the money, even at a lawful rate of interest. Nor was he required by the duties of his office to pay the unlawful interest that was demanded by. these bankers and brokers in the shape of bonuses. If Mr. Holladay had negotiated a loan on such terms, it might have resulted in a large pecuniary loss to himself; but it is unnecessary to decide this question now, further than to say he was not guilty of neglect, nor did he violate his duty as executor in failing to do so. 2. The next charge is more important: Section 1112, Hill’s Code, requires an executor or administrator, within a month from the date of his appointment, or, if necessary, such further time as the court or judge thereof may allow, to make and file with the clerk an inventory, verified by his own oath, of all the real and personal property of the deceased which shall come to his possession or knowledge. Section 1113 prescribes what the inventory shall contain, and section 1114 requires: ' “Before the inventory is filed the property therein specified shall be appraised at its true [171] cash, value by three disinterested and competent persons, who shall be appointed by the county court or judge thereof.” Joseph Holladay was appointed and qualified as the sole executor of Ben Holladay’s will, on the eleventh day of April, 1888. He had. one month from this date in which to make and file an inventory, and upon a suitable showing the court was empowered to enlarge the time. It does not appear affirmatively that any such showing was made or the time enlarged. At some time prior to the twenty-second day of September, 1888, Joseph Holladay filed an inventory, or list, of the property of said estate, without first having caused the same to be appraised. He did not file this document within one month after his appointment, the time for filing was not enlarged, and he neglected to have the property appraised. On the argument it was suggested that, when the appraisers were appointed and notified him of their readiness to meet him and appraise the property, he was sick, and unable to attend to the business on that day. Had these facts been made to appear to the county court, they, no doubt, would have furnished a sufficient reason for enlarging the time for filing the inventory. But the executor seems to have acted on the assumption that his duties in this regard were not imperative as to time, and that, if he delivered a list of the property to the county clerk without appraisal, he had done all that he was required to do. A failure to make and return an inventory of the estate by the executor or administrator, within the time allowed by law, is a violation of his duty for which he is subject to removal. Oglesby v. Howard, 43 Ala. 144; Estate of Brophy, 12 Phila. 18; Williams v. Tobias, 37 Ind. 345; McFadden v. Ross, 93 Ind. 134. 3. But if the case on the record were doubtful, we would not feel called on to interfere. In the very nature of things, county courts are vested with large discretionary powers over the conduct of executors and administrators. It is not an absolute or arbitrary power, but is subject to the supervisory control of the circuit court. At the same [172] time, its exercise should not be interfered with unless some principle of law requires such interference. The principle which I think should be applied in such case is thus stated in Whitehall v. State, 19 Ind. 30: “When we consider the supervisory power of the probate court, which our common pleas is, over executors, administrators and guardians, and the duty resting upon that court to vigilantly exercise it, taken in connection with the amount of personal knowledge in the premises, which the court will generally, as a matter of course, possess, it will at once be conceded that, in a doubtful case, this court should not interfere with the action of the court below. ” 4. Under our probate system the duties of an executor or administrator are active, and not passive. He cannot be permitted to neglect to do those things which are plainly required at his hands by law or the order of the court, and, when complaint is made of such neglect, excuse himself by alleging that such delay or omission was for the benefit of the estate. No doubt, in this, particular case, the property of the estate did appreciate in value; but that circumstance was accidental. It might have gone the other way, and, if the excuse is good in one instance it ought to be in the other. Such a theory is at variance with the requirements of our statute regulating probate procedure, and could not receive the sanction of this court. 5. It was claimed that Joseph Holladay sustained such unfriendly relations towards Mrs. Holladay and her children that he ought to be removed for that cause. Some authorities hold that such a state of affairs may constitute ground for removal, but I do not deem it necessary to pass on the question at this time, for the reason the allegation is not sustained by the evidence. Mr. Holladay denies any such charge, and the evidence offered to sustain it is weak and unsatisfactory. It is very difficult for this court to believe that the surviving brother, in whose hands a most important trust was placed by his deceased brother, could harbor any feelings of resentment or unfriendliness towards that brother’s widow and her [173] orphan children. For the reasons above given, the decree of the court below must be affirmed. [Filed November 7, 1889.]