Murray's Estate

Mr. Justice Eakin delivered the opinion of the court. 1. The form of this proceeding is questioned for the first time in this court. ' Counsel for the sureties contend that there can be no .action on the undertaking of an administrator until there has been a settlement of the account of the former administrator, which is not disputed. But this is a proceeding in the county court for such settlement and is not an action on the bond. However, the issues have been made and trial had upon the suggestion in the answer that, although a distribution was prematurely made, it was made to the heir, .and therefore the sureties should not be held for the whole of the property of the estate, but only for such amount as would be necessary to pay the debts and expenses of administration. This being acquiesced in by all the parties as well as the lower courts is. a waiver by the administrator de bonis non of .an accounting of the whole estate, the sureties having tendered an issue as to the amount and validity of the claim of Casto, for the purpose of determining whether there is any occasion for an accounting, and, if so, for what amount. 2. It was proper that Emma Murray as the heir of William Murray, deceased, care for the property of decedent, so far as necessary for its preservation, or cause it to be done, until the administrator was appointed. Casto v. Murray, 47 Or. 66 (81 Pac. 388, 883). And, if expense was incurred in the necessary care of the property before the appointment of the administrator, she was entitled to compensation therefor out of the estate. She was entitled to anticipate the administration and to do what was necessary to preserve the estate. Casto v. Murray, 47 Or. 57 (81 Pac. 388, 883); Taylor v. Woburn, 130 Mass. 494. The appointment relates back to the death of decedent, legalizing the acts done before her appointment [137] as administratrix, provided they were done for the benefit of the estate. 11 Am. & Eng. Enc. Law (2 ed.) 908; Whitelock v. Bowery Savings Bank, 36 Hun (N. Y.) 460; Rowe v. Cockrell, Bailey’s Eq. (S. C.) 126; Cook v. Cook, 24 S. C. 206. 3. In this case Casto rendered the service upon a contract of lease made with the heir, but the lease, not being for the benefit of the estate, was void as against it. Casto v. Murray, 47 Or. 57 (81 Pac. 388, 883); Dutcher v. Dutcher, 88 Hun (N. Y.) 221 (34 N. Y. Supp. 653.) 4. The respondent, Casto, was not a stranger nor an intermed'dler in caring for the horse. His services will be deemed to have been rendered at the request of Emma Murray for the benefit of the estate. As said in Gove v. Island City M. & M. Co., 19 Or. 363 (24 Pac. 521), when one performs service for .another on a special contract, and for any reason, except voluntary abandonment, fails to fully comply with his contract, and the service has been of value to him for whom it was rendered, he may recover the reasonable value of such service. Steeples v. Newton, 7 Or. 110 (33 Am. Rep. 705); Todd v. Huntington, 13 Or. 9 (4 Pac. 295.) 5. And he was entitled to compensation from Emma Murray for the value of his services, and she was entitled to be reimbursed therefor out of the estate by the administrator when appointed. 11 Am. & Eng. Enc. Law (2 ed.) 1234; Roberts v. Rogers, 28 Miss 152 (61 Am. Dec. 542); Branham v. Commonwealth, 7 J. J. Marsh (Ky.) 190; Todd v. Martin, 104 Cal. 18 (37 Pac. 872). 6. However, the claim of a creditor arising upon the contract of the administrator is enforceable against him personally and not ordinarily against the estate, and,* if a proper item of expense, will be allowed to the administrator out of the estate. Sturgis v. Sturgis, 51 Or. 18 (93 Pac. 696: 15 L. R. A. (N. S.) 1034.) 7. The statute requiring claims to be presented to the [138] administrator within six months from the publication of the notice to creditors, only postpones claims not presented within that time until the payment of those so presented. Section 1159, B. & G. Comp. 8. But the status of a liability upon the administrator’s own contract for the benefit of the estate is very different from that of a debt created by the decedent in his lifetime and need not be presented to the estate at all by the creditor, being a preferred claim in favor of the administrator in the settlement of the estate. Section 1217, B. & C. Comp. Although Casto’s remedy was upon the personal liability of the administrator .and not against the estate, yet there is an exception to this general rule as in case of a claim for funeral expenses or care of live stock, or in case of the insolvency of the administrator, to which might be added the removal of the administrator beyond the jurisdiction of the court. 11 Am. & Eng. Enc. Law (2 ed.) 937; Baker v. Baker, Bailey’s Eq. (S. C.) 165; In re Galland’s Estate, 92 Cal. 293 (28 Pac. 287); Donald v. McWhorter, 44 Miss. 124; Farley v. Hord, 45 Miss 96. And in such a case the creditor may be allowed to take the place of the administrator and be paid out of the estate to the same extent. 9. The sureties by their brief contend for the first time that this proceeding is :a.t law, and that they were entitled to a trial by jury in the circuit court. But it is too late to raise that question. Furthermore, what has been said as to the form of the proceeding applies to this objection, also. The proceeding was not at law, and the validity of the claim of Casto was tried out as incident to the accounting. The sureties tendered the issue and are bound by the result. We have examined the evidence as to the amount and character of the service rendered by Casto in the care of the horse, as well as the value thereof, and find that it justifies the findings of the circuit court thereon. [139] 10. The circuit court, after settling the .account of the former administratrix as to the amount of money necessary to pay the debts due from the estate, directed judgment against the sureties, Herren and Becker, for the amount thereof. This, we think, was error. This is not an action on the undertaking, but a proceeding to settle the account of the former administratrix, to which the sureties are necessary parties. Herren’s Estate, 40 Or. 90 (66 Pac. 688.) The probate court does not have general equitable jurisdiction with power to grant full relief, but only such as relates to the administration of the estate. It has no jurisdiction of an action on the undertaking, and no such relief is asked. Therefore the decree of the lower court will be reversed in so far as it is a personal judgment against Herren and Becker. It is further adjudged and decreed that at the time of her death there was $4,000 in money, the property of the estate of William Murray, deceased, unaccounted for by Emma Murray as administratrix of said estate; that, as suggested herein, she being the sole heir, the sureties on her undertaking should not be called upon to account for more than sufficient to pay the debts and expenses of administration; that the debts of the estate established in this proceeding amount to $511.71, with interest at 6 per cent per annum from October 31, 1905. It is further ordered that the cause be remanded to the circuit court, and by it to the county court, with direction to settle the account of the former administratrix by adjudging that the sum of $4,000 of the said estate that came into her hands is due the estate thereon; that it ascertain the amount of money that will be required to pay the debts of said estate and the expense of administration, which shall be the amount to be collected upon the undertaking of the said Emma Murray, administratrix, in case the remainder of said $4,000 has been properly distributed to the heir; that the matter of the attorney’s fees allowed by the circuit court [140] to the administrator de bonis non is not in any way involved in this proceeding. It is allowable by the county court as other items of expense are allowed, and not as an incident of this proceeding. The appellants will recover costs and disbursements in this court, and the respondents will recover costs and disbursements in the circuit and county court. Reversed.