Cusick v. Hammer

Oregon Supreme Court

Cusick v. Hammer

36 P. 525, 25 Or. 472, 1894 Ore. LEXIS 40

CourtOregon Supreme Court

DecidedApril 17, 1894

StatusPublished

Cited by1 cases

This text of 36 P. 525 (Cusick v. Hammer) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cusick v. Hammer, 36 P. 525, 25 Or. 472, 1894 Ore. LEXIS 40 (Or. 1894).

Pincite

Opinion

Opinion by

Mr. Justice Bean.

.Under the statute (Hill’s Code, §§ 1085, 1086,) the right to administer upon an estate is first in the widow or next of kin, or both, in the discretion of the court, if qualified and competent for the trust; but if they do not apply within thirty days from the decease of the [474]*474intestate, they shall be deemed to have renounced their right thereto, and it is then in one or more of the principal creditors, if they apply within forty days. It is under this latter provision that the petitioners claim the right to administer upon the estate, and to have the letters issued to Hammer revoked and recalled, but they are met at the threshold of the case by an objection which to us seems fatal. The petitioners claim that Fleming is the principal creditor of the estate, and therefore entitled to letters of administration, but this fact is left to stand alone upon a naked assertion to that effect. The record shows that both Hammer and Fleming are creditors, and, since Hammer’s appointment is regular in form, before he can be removed, or his letters revoked, at the instance of some other creditor, who claims a better right to administer simply because he is the principal creditor, the petition for removal should aver the facts which make him such creditor, and a general allegation to that effect is not sufficient: White v. Spaulding, 50 Mich. 22, 14 N. W. 684. In an ex parte application for the appointment of an admistrator, an allegation that the petitioner is the principal creditor of the estate would perhaps be sufficient to give the court jurisdiction to make the appointment, but when the regularity of an appointment already made is attacked, and sought to be revoked because issued'to the wrong member of a class entitled to administer, the petitioner must affirmatively show in an issuable form facts whieh, if true, give him the preference under the law. It follows, therefore, that the decree of the court below must be affirmed.

Aeeirmed.

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Opinion by

Mr. Justice Bean.

.Under the statute (Hill’s Code, §§ 1085, 1086,) the right to administer upon an estate is first in the widow or next of kin, or both, in the discretion of the court, if qualified and competent for the trust; but if they do not apply within thirty days from the decease of the [474]*474intestate, they shall be deemed to have renounced their right thereto, and it is then in one or more of the principal creditors, if they apply within forty days. It is under this latter provision that the petitioners claim the right to administer upon the estate, and to have the letters issued to Hammer revoked and recalled, but they are met at the threshold of the case by an objection which to us seems fatal. The petitioners claim that Fleming is the principal creditor of the estate, and therefore entitled to letters of administration, but this fact is left to stand alone upon a naked assertion to that effect. The record shows that both Hammer and Fleming are creditors, and, since Hammer’s appointment is regular in form, before he can be removed, or his letters revoked, at the instance of some other creditor, who claims a better right to administer simply because he is the principal creditor, the petition for removal should aver the facts which make him such creditor, and a general allegation to that effect is not sufficient: White v. Spaulding, 50 Mich. 22, 14 N. W. 684. In an ex parte application for the appointment of an admistrator, an allegation that the petitioner is the principal creditor of the estate would perhaps be sufficient to give the court jurisdiction to make the appointment, but when the regularity of an appointment already made is attacked, and sought to be revoked because issued'to the wrong member of a class entitled to administer, the petitioner must affirmatively show in an issuable form facts whieh, if true, give him the preference under the law. It follows, therefore, that the decree of the court below must be affirmed.

Aeeirmed.

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Bluebook (online)

36 P. 525, 25 Or. 472, 1894 Ore. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cusick-v-hammer-or-1894.

Opinion

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