Oregon v. Simmons ( 1905 )

Mr. Chief Justice Wolverton

delivered the opinion.

Before the State could have judgment against the administrator that he render possession of the property involved by the controversy to the sheriff, it is essential that it allege and show that all the claims and demands against the estate presented to the administrator in the usual course, "and all costs and expenses of administration have been fully paid and discharged, and the estate settled; otherwise the administrator is still entitled to retain the property for the purpose of administration. Such, in effect, is the holding of this court in State ex rel. v. O’Day, 41 Or. 495 (69 Pac. 542). The complaint shows that the administrator is in possession of the property, that there are no unpaid claims against the estate, and by reasonable inference, which we are allowed to draw after answer, that all lawful claims and demands against the estate, including the expenses and costs of administration, have been paid; but the trial court has made no finding touching these important and essential allegations, nor has it found that the estate has been fully settled, so that the findings do not support, the judgment rendered. There cannot be two repugnant jurisdictions of the same matter at the same time, and while the county court has jurisdiction to administer the estate the circuit court cannot have jurisdiction to take it from the administrator and turn it over to the sheriff. The latter jurisdiction must necessarily abide the exercise of the former until the business thereof has been fully settled, which is to administer and settle -the estate. When this is done, the latter may exercise jurisdiction and adjudge that the residue be delivered up to the sheriff, but until then any judgment entered in the circuit court against the administrator for the present possession of the property is premature and without the sanction of law. At the time of the commencement of this action and the rendition of the judgment by the circuit court, the statute (B. & C. Comp. § 5616) provided that, when the Governor was informed or had reason to believe that any real or personal property had escheated to the State, he should direct the district attorney to file an information setting forth the necessary facts, to have it so declared, which was to be followed by other proceedings until the contemplated adjudication was had. Property escheats to the. State when the decedent leaves no lawful descendants, kindred, or other persons competent to take under the statute: B. & C. Comp. §§ 5577, subd. 7; 5578, subd. 5; and 5614. Such property is, however, subject to the debts and liabilities of the estate of the decedent and .the costs and expenses of administration, andj before these can be ascertained and regularly discharged, there must be an administration, and of this, as we have seen, the county court has exclusive jurisdiction. The statute, however, is susceptible of the construction that escheat proceedings could have been begun at once, whenever the governor was informed that the property had escheated; but such proceedings,' ivhen commenced, must necessarily bide the time of the settlement of the estate in the county court, before judgment can be had against the administrator that he render possession of the property to the sheriff. Any other rule would lead to conflict of jurisdiction and confusion, and such was manifestly not the intention or purpose of the legislature. A statute of more recent date has been adopted (Laws 1903, p. 137), purporting to oust the jurisdiction of county courts to determine the question of heirship or right to claim personal property of an estate after information of escheat has been preferred, but it does not assume to curtail its original jurisdiction as to the settlement of the' claims and demands against the estate, and the costs and expenses of administration, so that tbe amendment cannot affect the present controversy. Section 9 of the latter act prescribes that the judgment escheating personal property shall provide that any such property remaining undisposed of by order of the probate court shall be sold by the sheriff, etc., and it is suggested by tbe. attorney general that this court is thus empowered to modify the judgment in the present proceeding accordingly, and thereby avoid the necessity of remanding the cause. To do this, however, we must know by some finding of fact of tbe trial court that there would be some part of the decedent’s estate left after full administration in the probate court; otherwise it would be useless to enter any judgment in the premises. We are impressed, therefore, that a regular procedure requires a reversal of the present judgment against the 'administrator, and that, the cause should be remanded for such further action in the premises as may seem propej/'an'd such will be the order of this court. Reversed.