In re S. Marks & Co.'s Estate

Me. Justice Eakin delivered the opinion of the court. 1. In the trial of this proceeding in the County Court the evidence was taken as fully as it would have been upon an acounting. More than 400 pages of testimony were taken and as great a volume of exhibits were submitted, all being contained in the record here. We do not deem it important to examine this record with great particularity, as the only question for consideration is whether the decision of the County Court in removing H. Wollenberg, the administrator de bonis non, should be upheld, without determining the actual conditions of the accounts or the actual relative rights of the parties. As said in Marks v. Coats, 37 Or. 609 (62 Pac. 488), it is sufficient for the purposes of the case that there is reasonable ground to believe that his acts have been in violation of his trust. The statute fully authorizes the County Court to remove the administrator if he is negligent with his trust or neglects to file his semi-annual accounts: See Sections 1159, 1165, 1282, 1283, and 1293, L. O. L. 2. It might be apropos to remark here that our statutory proceedings for the administration of estates is for the purpose of marshaling the assets of the decedent’s estate that the debts may be promptly paid and the remaining assets just as promptly distributed to those entitled to them. County courts are sometimes much too lenient in requiring an expeditious compliance with the statute in the administration of estates. [345] 3. If the heirs and devisees desire to continue the business of the ancestor undivided, they should first have the estate closed, as provided by law$ and take over the business individually; but it is not the affair of the administrator to continue the business as a part of the administration, and the County Court has no power or authority to authorize or permit him so to do. 4. It appears that this estate has been in the course of administration for 20 years, and the writer of this opinion can conceive of no circumstances that would justify such a delay. It was not occasioned by any order of the County Court, nor upon any good cause shown, but by usurpation of authority to conduct a business for the heirs against their will and protest. This delay alone is a sufficient violation of the statute and abuse of his trust to authorize the County Court to remove him on its own motion. 5. Furthermore, it appears from the petition and evidence that the personal interests of the administrator are so .adverse to the interests of the estate, and of those entitled to its distribution, that both cannot be fairly represented by the same person. The administrator’s duties are those of a trustee, and he should be such a person as can and will carefully guard the interests of the estate and of the distributees thereof. He should be an indifferent person as between the claimants thereto: See In re Mill’s Estate, 22 Or. 210 (29 Pac. 443). It is said in Manser’s Estate, 60 Or. 240 (118 Pac. 1024): “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 administration, and when his interest conflicts [346] with such right and duty the County Court, in the exercise of a sound discretion, may remove him.” In Re Holladay’s Estate, 18 Or. 168 (22 Pac. 750), it is said: “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 * * and could not receive the sanction of this court.” 6. A cursory examination of the evidence convinces us that "Wollenberg’s individual interests are antagonistic to the interests of the estate, and that he is not a proper person to administer it. It is said in the last case cited above: “In the very nature of things, County Courts are vested with a very large discretionary power over the conduct of executors and administrators.” And its exercise will not be interfered with on appeal, unless plainly required by some principle of law. The decree of the Circuit Court is affirmed. Affirmed. Mr. Justice Bean and Mr. Justice McNary concur. Mr. Chief Justice McBride not sitting.