Riddle v. Isaacs

BURNETT, J. 1. In this case it is only necessary to consider the general demurrer to the ^complaint. It will he observed that under the will the executrix has the use and control during her life of the whole estate, with the right to expend the same as she may need for her own personal comfort and support, and not only so, but for the proper care of the estate. Thus she had the power under the testamentary direction of her deceased husband to manage the estate, and it was competent for her to contract with the defendant to occupy it for that purpose. To her-alone is he responsible for maladministration of the. venture. Not until the death of the testator’s wife, the executrix, have the plaintiffs any right to the residue of the estate. 2. As taught in Hillman v. Young, 64 Or. 73, 89 (127 Pac. 793, 129 Pac. 124), only the executor or administrator as a general rule can litigate for the recovery of the property belonging to his decedent’s estate. The title to such property accruing to the heir must come through the personal representative of the deceased owner. There is an exception to this common precept pointed out in the case cited, which in substance is that, when the executor acts in collusion with the one from whom a debt or obligation is due to the estate, and refuses to compel the liquidation of such an obligation, the heir may join them both, and compel the collection of the assets for the benefit of the estate to be administered by the proper representative of the decedent. As to the property of the estate in the instant case, there is no averment anywhere in the complaint that the executrix refuses to collect what may be due from the defendant, or that she is in collusion with him for the purpose of defrauding the plaintiffs. The allegation of [409] the complaint here does not bring the case within the exception pointed out in Hillman v. Young. Their ancestor has prescribed the manner in which and by whom his estate shall be controlled, and the plaintiffs are bound thereby, in the absence of any allegation charging the representative with wrongdoing. To her, and not to the plaintiffs, is the defendant responsible. He is not bound, under any circumstance disclosed by the pleadings, to account to them for anything whatever belonging to the estate. 3, 4. It remains only to consider the allegation 'that he induced them to execute notes in favor of the Medford National Bank, as already quoted. In what respect the representation that money was required to be expended in raising the orchard was false, is not stated. Neither is there anything said respecting the representation by which they were induced to execute the notes. Nor is it shown that they have paid the notes, or have been compelled to pay them, so that no damage is shown by virtue of the transaction. In order to be a good pleading of fraud, the representations claimed to be false must be stated. The truth must be averred, so that the court may determine the falsity of the representations alleged to be fraudulent. It must appear that the individual making them knew they were false, and that he intended thereby to perpetrate a fraud; and, finally, that the party seeking to be relieved from the fraud relied upon such representations. This is the doctrine taught in Rolfes v. Russell, 5 Or. 400; Dunning v. Creson, 6 Or. 241; Wimer v. Smith, 22 Or. 469 (30 Pac. 416); Martin v. Eagle Development Co., 41 Or. 448 (69 Pac. 216); Bailey v. Frazier, 62 Or. 142 (124 Pac. 643); Smith v. Anderson, 74 Or. 90 (144 Pac. 1158); Waller v. City of New York Ins. Co., 84 Or. [410] 284 (164 Pac. 959, Ann. Cas. 1918C, 139). The demurrer to the complaint should have been sustained. The resulting decree, however, was a proper disposition of the case, and should be affirmed. It is so ordered. Affirmed. McBride, C. J., and Benson and Johns, JJ., concur.