In re Marks' Estate

Mr. Justice Burnett delivered the opinion of the court. 1, 2. All that appears in the abstract in the way of pleadings are the petitions for the removal of Parrott and for the vacation of the order of sale. As to the latter, it is sufficient to say that by the publication of a citation to part of the petitioners and personal service as to the others the County Court acquired jurisdiction to make a decision in the matter involved. It is not by the mark at the present juncture to say whether that decision was right or wrong in point of law. Having jurisdiction of the subject matter and of the parties, the court had a right to decide either correctly or erroneously. In the statute relating to the administration of estates there is no direct provision for setting aside an order of sale. The petitioners claim they were entitled to relief by virtue of the provisions of Section 103, L. O. L., reading thus: “The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done after the time limited by this Code, or by an order enlarge such time; [636] and may also, in its discretion, and upon such terms as may he just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. ’ ’ It will be observed that relief under this section is explicitly referred to the discretion of the court, and it has been constantly held that orders made in the exercise of this prerogative are not reviewable on appeal except for abuse of the power. The record before us does not disclose any such situation. Hence, so far as relates to Section 103, L. O. L., the matter of the vacation of the order may be dismissed without further attention; it not being an appealable order. 3. If the petitioners base their contention on Section 59, L. O. L., allowing them as a matter of right, as decided in Felts v. Boyer, 73 Or. 83 (144 Pac. 420), to answer within one year after default decree taken on publication of summons, they yet must fail because they did not tender their answer with their petition to vacate the order of sale. On the contrary, they pray for “an order vacating and setting aside said order of sale of February 1, 1911, and allowing them to make said and any other proper objections and defenses to said petition for the sale of real property as they may be advised and believe proper to do under Section 103 of B. & 0. Code Laws of Oregon.” The answer was avowedly in futuro and might or might not have been filed. In Mayer v. Mayer, 27 Or. 133 (39 Pac. 1002), and Egan v. North American Loan Co., 45 Or. 131 (76 Pac. 774, 77 Pac. 392), this court has decided that the proper practice in such cases is to tender the proposed answer with the application to take oft the default. The court will not set aside a decree and leave the way open for such experiments ad libitum as may suggest themselves to ingenious [637] counsel. It is only for “sufficient cause shown” that the belated defendant will be let in. An answer to the merits tendered with the application is an essential part of the procedure wanting in this instance. 4—7. As to the matter of removal of the administrator, it is said by Mr. Justice Eakin in this self-same case, In re S. Marks & Co’s Estate, 66 Or. 340, 346 (133 Pac. 777, 779), that: “In the very nature of things, County Courts are vested with a very large discretionary power over the conduct of executors and administrators.” This was stated with reference to the removal of Wollenberg as administrator de bonis non. The allegation here against Parrott is a mere conclusion of law. No charge is made that he has proved unfaithful to his trust in any manner whatever, yet this is one of the grounds authorizing the removal of an administrator under Section 1159, L. O. L. We might imagine that in the future complications could possibly arise, where his personal interests would conflict with his official duty; but no such situation is yet presented. It does not follow as a matter of law that the surety of a former administrator is necessarily disqualified because of a potential interest which might afterward appear. The same objection might be urged against the appointment of a creditor of a decedent to administer the estate of the latter. Debtors of an estate are often appointed to its administration. Something more should appear in the petition than the bare fact that Parrott had been surety for a former administrator. We cannot presume that he will squander the estate or fail to properly administer it. The petitioners are not without remedy in the premises, for they may surcharge his final account if he squanders the estate or fails to reduce its choses in action to possession. If he owes the estate, his debt would be reckoned [638] as so much money on hand for which his sureties would he liable under United Brethren v. Akin, 45 Or. 247 (77 Pac. 748, 2 Ann. Cas. 353, note, 66 L. R. A. 654). If he refuses to collect debts owing to it and properly apply the proceeds, the heirs by suitable litigation may themselves realize upon them in the interest of the estate under the doctrine announced in Hillman v. Young, 64 Or. 73 (127 Pac. 793, 129 Pac. 124). We are not unmindful of what has been said by this court in the cases of In re Estate of Mills, 22 Or. 210 (29 Pac. 443), Marks v. Coats, 37 Or. 609 (62 Pac. 488); Bean v. Pettengill, 57 Or. 22 (109 Pac. 865), and Manser’s Estate, 60 Or. 240 (118 Pac. 1024). In all those instances there was a direct conflict between the estate and the administrator as to the title to certain property in which it was impossible for him to act indifferently. They each present a situation where the administrator claimed as his own certain property which had and as the petitioners averred yet belonged to the decedent, all of which was made to appear by appropriate pleading. In the present juncture the liability of Parrott is at best secondary and may never arise. When it does, it will be time enough to suspend his activities in the fiduciary capacity under consideration. It would invade the discretionary power of the County Court over administrators if upon .the showing made we should sanction the removal of the present administrator, especially where the petitioners have so many means of protecting their interests in the estate. The decree of the Circuit Court is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Bean concur. Mr. Justice Harris took no part in the consideration of this case.