Dolven v. First National Bank

SLOAN, J. Plaintiffs seek to set aside the will of the decedent Ethel E. Wheeler. The will had been admitted to probate. The challenged will had been executed in 1958. Plaintiffs contend that Mrs. Wheeler had executed a later will which had revoked the 1958 will. However, the later will, if it had been executed, could not be found. Prior to the time that the 1958 will was submitted for probate plaintiff, Gloria Dolven, who was the daughter of Mrs. Wheeler, had petitioned the probate court of Umatilla county to appoint her as administratrix of Mrs. Wheeler’s estate. The basis of hex-petition was that Mrs. Wheeler had died intestate. The intestacy was claimed because of the alleged revocation of the 1958 mil by the later undiscovered document. This petition was challenged by the First National Bank of Oregon named as executor in the 1958 will. Trial was had on that petition in the district court for Umatilla county, the court having probate jurisdiction in that county. The district court held that the petitioner, Gloria Dolven, did not sustain the burden of proving the revocation of the 1958 mil. The district [308] court denied the petition for letters of administration. No appeal was taken from that order. In the instant case defendant, First National Bank of Oregon, in answer to plaintiffs’ complaint, alleged that the district court determination was res judicata of the issues presented by plaintiffs’ complaint herein. The trial court held that “* * * there being an identity of parties and subject matter and an adjudication in the former proceeding * * *, the contestants are now precluded from again litigating the same matter, * * Plaintiffs, on appeal, do not dispute the quoted finding that the parties and subject matter are the same. They do argue that the adjudication was not conclusive because, they say, the district court did not have jurisdiction to make it. That is not so. Plaintiff Gloria Dolven had filed a petition alleging that Ethel Wheeler had died intestate and seeking appointment of herself as administratrix of Mrs. Wheeler’s estate. The probate court is vested with “exclusive jurisdiction” to hear such a petition. ORS 5.040. Woodburn Lodge v. Wilson, 1934, 148 Or 150, 34 P2d 611, John v. Smith, 1899, 91 Fed 827, 832. In this instance the petition had been resisted with averments that an unrevoked will existed. This was the issue submitted and tried by the probate court. It was not contended that the 1958 will was invalid. The question was simply the existence of a later will. The authorities cited establish that the probate court had the competence to decide the issue. Neither party requested that the disputed issue be transferred to the circuit court. ORS 5.050. When plaintiff filed her petition for intestate administration her sole purpose was to thwart the pro [309] bate of tbe existing 1958 mil. She submitted herself to the court to have the issue of later revocation of that will decided by the court. This is not a case in which it can be said that the parties cannot confer jurisdiction if jurisdiction does not otherwise exist. At the time of the hearing upon her petition the district court had undisputed jurisdiction of the parties and of the subject matter of the issues submitted. Absent an appeal the decision of the district court was final and is now res judicata of the present attempt to re-litigate the identical issues so decided. Sibold v. Sibold, 1959, 217 Or 27, 340 P2d 974, Jarvy v. Mowrey, 1963, 235 Or 579, 385 P2d 336, Holmes v. Oregon & California R. Co., 1881, 9 Fed 229, Thomas Kay Woolen Mill Co. v. Sprague, 1919, 259 Fed 338. Although the district court case was presented in a different form it presented to the court the same “* * * factual raw material * * *” as in the instant case. Jarvy v. Mowrey, supra, 235 Or 586. The factual issues were identical. Only the label attached to the proceeding is different. In the Sibold case we followed this quotation which is particularly pertinent here: “* * * To like effect, see, Lake v. Bonynge, 161 Cal 718, 118 P 535, from which we quote the following: ‘Freeman on Judgments, Section 323, declares: “The tendency of the recent adjudications is to inquire whether an issue or question has been in fact presented for decision and necessarily decided, and, if so, to treat it as res adjudicata, though the decision is the determination of a motion or summary proceeding, and not of an independent action. * * ” Sibold v. Sibold, 217 Or at page 32. [310] In the instant situation plaintiff could have appealed the district court’s decision to the circuit court and then to this court. Upon an adverse ruling here, if plaintiff is right, she could have gone through the entire process again by the course she now attempts. If the doctrine of res judicata has any vitality at all it must apply to a case of this kind. The trial court correctly decided the case. The judgment is affirmed.