Harvey v. Getchell

225 P.2d 391, 190 Or. 205, 1950 Ore. LEXIS 244

• Court: Oregon Supreme Court
• Decided: December 12, 1950
• Status: Published

Opinions

HAT, J.

On Motion to Dismiss Appeal

This suit was instituted by Worth Harvey, as administrator of the estate of L. M. Capps, deceased, and Elizabeth G. Capps, widow of said L. M. Capps, as plaintiffs, against the defendants, to quiet title to certain mining claims in Lane County, Oregon. Prior to L.. M. Capps’s death, he and his said wife had contracted in writing to sell such mining claims to • one P. Dale Wyatt. The circuit court for Lane County, by order made and entered October 29, 1946, authorized the bringing of the suit by said administrator, at the expense of the said Wyatt. On May 5, 1947, Elizabeth G. Capps died testate, and, on March 2, 1948, said Worth Harvey, who had been appointed administrator with the will annexed of her estate, was duly substituted for her as a plaintiff herein. Plaintiff appealed from an adverse decree.

Defendants have moved to dismiss the appeal upon the ground that plaintiff is no longer authorized to act as administrator of said estates.

It appears that, on May 29, 1948, said Wyatt made to plaintiff, as administrator of the estate of L. M. Capps, deceased, an offer of compromise settlement of an unpaid balance of the purchase price under said contract of sale. Acceptance of such offer was authorized in writing by all of the heirs of said L. M. Capps and by the legatees and distributees under the will of said Elizabeth G. Capps, deceased, and, on July 16, 1948, the court entered an order authorizing plaintiff, as administrator of the estate of said L. M. Capps, deceased, to accept such offer. Although the portions of the record before us do not so disclose, we assume, and the parties hereto apparently concede, that the offer was duly accepted and that the mining claims were duly assigned and conveyed to said Wyatt.

The transfer of the interest of plaintiff administrator in said mining claims during the pendency of this suit did not abate the suit, nor did it necessitate that the transferee be substituted as plaintiff herein. § 1-311, O. C. L. A.; Burns v. Kennedy, 49 Or. 588, 590, 90 P. 1102; Smith v. Cram, 113 Or. 313, 320, 230 P. 812; Ankeny v. Lieuallen, 169 Or. 206, 223, 113 P. 2d 1113, 127 P. 2d 735; In re First & Farmers National Bank, 145 Or. 150, 163, 26 P. 2d 1103; Clatsop County v. Taylor, 167 Or. 563, 570, 119 P. 2d 285.

It appears from exhibits attached to the motions that plaintiff filed his final account in the L. M. Capps estate on July 27, 1948. The account was approved by order entered September 7, 1948, but the administrator was not discharged. He filed his final account in the Elizabeth G. Capps estate on August 3, 1948. The account was approved by order entered September 14, 1948, and on October 28, 1948, the court entered an order discharging plaintiff as administrator and exonerating his bondsmen. We disagree with defendants’ contention that the approval of plaintiff’s final account in the L. M. Capps estate operated to discharge him as administrator. He was not formally discharged, and, in such cases, the rule is that the functions of an executor or administrator do not necessarily cease on settlement and approval of his final account, but, on the contrary, he may, if occasion arises, pursue his duties further for the benefit of the estate. 33 C. J. S., Executors and Administrators, p. 1010, § 78c. We do not pass upon the question of whether or not, if the tenure of plaintiff as administrator should be terminated, his transferee would be disabled from continuing the suit in the administrator’s name. It is sufficient to say that it is the administrator’s duty to his transferee, under the circumstances, and therefore of benefit to the estate, that his tenure should be maintained during the pendency of the litigation.

No doubt plaintiff’s authority as administrator c. t. a. of the estate of Elizabeth G. Capps, deceased, ceased upon his discharge, but that would appear to be immaterial at the present juncture. The mining claims were not assets of her estate. They were part of the assets of the estate of L. M. Capps. Even if plaintiff is no longer qualified as administrator of Mrs. Capps’s estate, he is still administrator of the estate of L. M. Capps, and it is proper that the suit should be continued in his name as such. The motion is simply to dismiss the appeal. In our opinion, it is not well taken, and it is denied.