In re Murray's Estate

49 P. 961, 31 Or. 173, 1897 Ore. LEXIS 28

• Court: Oregon Supreme Court
• Decided: July 31, 1897
• Status: Published

Opinion

Opinion by

Mr. Justice Bean.

This appeal brings up for review a decree of the Circuit Court of Grant County, made in the matter of the final account of Kenneth F. MacRae, as assignee of Murray Brothers, formerly partners doing business as stockmen and ranchers in Grant, Harney, and Malheur counties. MacRae was appointed in November, 1891, assumed control and management of the estate January 1, 1892, and filed his final account on May 31, 1894, showing a balance on hand of $4,256.70, of which he asked to be allowed the sum of $3,390.37 for his personal services as assignee, and $866.33 as a balance due for the services of his attorneys. After several ineffectual attempts to bring the matter of the account to a hearing, January 19, 1895, was fixed as the time for hearing objections thereto, and for the settlement thereof, of which due notice was given. On the eighteenth of January, 1895, one of the creditors of the estate filed objections to many items in the assignee’s final account, specifying with considerable detail the grounds of such objections. Nothing further, however, appears in the journal of the court in reference to the matter until May, 1896, when the court filed a decision wherein he makes some findings of fact to the effect that the estate had been extravagantly and wastefully managed, but did not pass upon any of the objections made to the final account, except such as pertained to the matter of the allowance to the assignee for his personal service and for the balance due his attorneys. On the twenty-sixth of May the assignee filed a motion, supported by affidavit, for a rehearing, and a re-examination of the matter, and for leave to file a supplemental report. This motion was allowed, and on October 7, 1896, a supplemental report, explanatory of the final account, and in answer to the objections thereto, setting out at great length and with much detail the transactions of the assignee, was filed by him, and the whole matter argued and submitted. On February 8,1897, the court again filed what are denominated findings of fact and conclusions of law, but which, like the former findings, did not pass upon or determine the specific objections made to the assignee’s final report, or undertake to settle his accounts. Upon these findings a decree was rendered that “the final account and report and the supplemental account and report of the said assignee be, and the same are hereby, rejected and disallowed; that the said assignee be, and he is hereby, allowed the sum of $309.87, in addition to the amount already received by him as per his said final account and report, for his services as such, and the remaining sum now in his hands belonging to the said estate, to wit, the sum of $3,906.58, the said assignee is hereby ordered to forthwith distribute pro rata among the creditors of the estate, and that each creditor have and recover of and from the said assignee his costs and disbursements, taxed at the sum of $-

1. From this decree the assignee appeals, and, in our opinion, his appeal must prevail. Having discharged the duties of his trust, and filed his final account, he was entitled to have it settled and adjusted, and the specific objections made thereto passed upon and determined. This was not done, but an order was entered disallowing the account in toto, and ordering the distribution of the funds then in his hands, less the sum of $390, which he was permitted to retain for his own services; so that, as the matter now stands, the assignee must go to the expense and trouble of filing another final account notwithstanding the fact that the one on file is a full and complete account of his doings as assignee. The estate has been settled, and it only remains for the court to settle and adjust the accounts of the assignee. The proper practice would have been for the court below to have tried and determined the issues made by the objections to the final account, and either allowed it in whole or in part, and in that manner ascertained the sum with which the assignee is properly chargeable, and the amount for which he is entitled to a credit, and thereby settled and adjusted his account so that when he complied with the decree he would be entitled to a discharge and order exonerating his bondsmen. The final account of the business, together with the books, vouchers, and records on file, show all his transactions and his receipts and disbursements with particular and commendable clearness, and upon these records and the objections made to the final report he is entitled to have the matter adjusted, and not be compelled to begin over again. Although the court may have been of the opinion, from its examination of the record, that the estate had been extravagently managed or wasted, or that the assignee had failed to account for all the property coming into his hands, or had paid out money for which he was not entitled to a credit, it was not authorized on that account to disallow and reject his final account in toto. It should have tried out the disputed questions either from the record, if that could have been done, and, if not, from extraneous testimony, and made such a decree of final settlement as, in its opinion, the facts justified.

2. It is claimed that the objections were not filed in time, and are not properly verified, but questions of that kind cannot be made in this court for the first time. The case was argued and submitted twice to the court below on the assumption that the objections were properly filed. The only question in the case is the settlement of the final account of the assignee, and as this involves questions of fact which cannot be determined in this court from the record before us, it necessarily follows that the decree must be reversed, and the cause remanded to the court below, with directions to adjust and settle the final account of the assignee; and it is so ordered.

Reversed.