Mauser v. Baker

Mr. Justice Moore delivered the opinion of the court. 1. Upon the petition of any legatee, showing that an executor has in any way been unfaithful to or neglected his trust, notice thereof must be served upon the representative of the decedent’s estate, and if the court find the charge to be true it shall make an order removing the executor and revoking his letters. Section 1159, L. O. L. Within one month from his appointment, or during such further time as the court or judge may allow, an executor or administrator is required to file with the clerk an inventory of all the property of the deceased that has come to his possession or knowledge. Section 1177, L. O. L. A failure to comply with this mandate constitutes a breach of duty which may render the person, upon whom the obligation rests, liable to removal. In re H-olladay’s Estate, 18 Or. 168 (22 Pac. 750); In re Mill’s Estate, 22 Or. 210 (29 Pac. 443); In re Barnes’ Estate, 36 Or. 279 (59 Pac. 464.) It will be remembered that appraisers were appointed March 22, 1910, but that no inventory of the estate was filed until July 15th of that year. For the failure to comply with the requirement of the statute in this particular, the answer to the petition avers that the delay was occasioned by the absence of one of the appraisers, and also to acquire information respecting some property of the deceased at Dillon, Montana. The allegation referred to presented an apology for the procrastination, and it was within the discretion of the county court to determine whether or not the excuse was sufficient. That tribunal [245] determined the extenuating circumstances relied upon were inadequate to exculpate the delay in failing to comply with the demand of the statute, and the conclusion thus reached was affirmed by the circuit court. 2. If the want of a reply to the averment of new matter in the answer, respecting the cause of the delay to file the inventory, admitted the truth of such allegation, the validity and sufficiency of the excuse remained and was to be determined as a matter of discretion, so that Baker was not prejudiced by being deprived of an opportunity to offer testimony on that subject. 3. After the cause was decided by the circuit court, a justification for the delay was undertaken to be established by supplemental affidavits, offered in support of a motion for a rehearing. It is stated in one of the affidavits that when the answer to the petition was prepared the county judge’s allowance of further time in which to file the inventory was overlooked. It nowhere appears, however, that such fact was not remembered at the time the cause was tried anew in the circuit court, when that evidence could have been produced. The affidavits do not make such a case as to show that the circuit court abused its discretion in refusing to grant a new trial. 4. Considering the executor’s alleged adverse interest as another ground for his removal, the rule is settled in this State that, while a county court, in the exercise of its probate jurisdiction, has authority to entertain proceedings in the nature of a discovery against a person charged with an appropriation of property belonging to a decedent’s estate, such power is exhausted with the disclosure, and cannot be extended to determine the title to the property when asserted to be in another, which right must be litigated in a court of ordinary jurisdiction. Gardner v. Gillihan, 20 Or. 598 (27 Pac. 220); Dray v. Bloch, 29 Or. 347 (45 Pac. 772); In re Bolander’s Estate, 38 Or. 490 (63 Pac. 689); Harrington v. Jones, 53 Or. 237 (99 Pac. 935). [246] 5. The answer to the petition manifests an interest, claimed by Baker, that is adverse to the legatees, respecting the ownership of the drafts for $4,000, and the county court was powerless to determine the question of a gift causa mortis, though undertaken to be set forth by the executor. The averment of Baker’s title to the property was tantamount to a disclosure, and rendered it unnecessary to controvert by a reply such allegation. The motion for a decree on the pleadings invited a determination of the issue of law as to whether or not the executor’s interest was so antagonistic as to require his removal, in the exercise of a sound discretion. 6. It was impossible for Baker to bring an action against himself to determine his right to the $4,000, and he cannot be permitted to be the judge of his own title to the property, when other parties assert a claim to it. An executor is a quasi trustee, who should be indifferent between the estate and claimants of the property, except to preserve it for due adminsitration, and when his interest conflicts with such right and duty the county court, in the exercise of a sound discretion, may remove him. In re Mill’s Estate, 22 Or. 210 (29 Pac. 443); Marks v. Coats, 37 Or. 609 (62 Pac. 488). The executor herein was not required to give a bond for the faithful performance of his duties. If he had appropriated the $4,000, and the right of the petitioners to the money could be established by judgment, they would be remediless, unless he possessed sufficient property out of which the amount could be made. In his answer Baker did not offer to execute an undertaking, whereby the legatees could have been indemnified for any loss they might have sustained, and as his interest is adverse to theirs, and possibly to the rights of the estate, his removal was an exercise of sound discretion, which should not be disturbed. It follows that the decree of the circuit court should be affirmed, and it is so ordered. Affirmed.