McDermid v. Bourhill , 109 Or. 633 ( 1924 )

McBRIDE, C. J.

"We are clearly of the opinion that the executor was entitled, to possession of the real estate until the filing of the final account or some order of the County Court wholly or partially turning it over to him as trustee. The sections of the statute bearing upon this are as follows:

“§ 1288. [Or. L.] Administrator Chargeable With the Amount of Inventory. An executor or administrator is chargeable in his account with all the property of the estate which may come into his possession, at the value of the appraisement contained in the inventory, except as in this chapter otherwise provided.”

Ҥ1292. [Or. L.] Amount of compensation Allowed Executor or Administrator. The compensation provided by law for an executor or administrator is a commission upon the whole estate accounted for by him, as follows: *

The difficulty in this case is solved by mentally segregating the dual relation of Bourhill as executor from his relation to the estate as trustee under the will. The two offices are practically distinct; as much so as though Bourhill had been appointed executor of the will and some other person as trustee. His executorial duties must first be performed before he can exercise his duties as a trustee. As remarked by Mr. Justice Moore, in Roach ’s Estate, 50 Or. 179, 187 (92 Pac. 118):

“Where the same person has been appointed by a will to perform such dual duty in respect to the property of an estate, no service is demanded of him as testamentary trustee until he has fully performed his executorial obligation and secured an order of the probate court discharging him and liberating his bondsmen. Thus in Prindle v. Holcomb, 45 Conn. 111, it was held that the probate records should show that an executor’s account had been settled, before a testamentary trustee was entitled to take and hold the property of the estate for the purposes of the trust. In White v. Ditson, 140 Mass. 351 (4 N. E. 606, 54 Am. Rep. 473), in speaking of an executor, the court say: ‘While Healy fully completed the administration of the estate by the payment of all debts, legacies and expenses, he settled no final account as executor, and did not, by any open, notorious act, discharge himself as such in the probate court by assuming to transfer the residue of the property to himself as trustee, or by any other act indicating an intention thereafter to hold the same for the purposes of the trust. * * As actual payment cannot be made by one to himself, it has been held that, where the same person is executor and trustee, he must give bond in his character of trustee before he can exonerate himself from his liability as executor.’ ”

Of course, in the present case, Bourhill, neither as executor nor trustee, was required to give any bond.

We think clearly it was the right of Bourhill to take possession of the real estate and to account for it. So far as known, when the inventory was filed the estate owed very few debts and the personal property was apparently more than sufficient to cover such debts as were known at that time; but until six months had expired it could not be known, as a matter of law, what other claims might be presented, and it followed, naturally, as a matter of prudence as well as a matter of law, that the executor should retain possession of the property. It was within his power all the time. He was the only one who was authorized to collect rents due upon leased property during the time of his executorship, and such control as the law gave him was possession, within the meaning of that word. “Possession means simply the owning or having a thing in one’s power; it may be actual, or it may be constructive.” Brown v. Volkening, 64 N. Y. 76, 80.

In Illinois Steel Co. v. Jeka, 123 Wis. 419, 429 (101 N. W. 399), the court, citing Booth v. Small, 25 Iowa, 177, defines possession of land as follows: “Possession of land is the holding of and exclusive exercise of dominion over it.” See, also, Oxford Dictionary, subject, Possession.

Not only was the possession constructive, but Bourhill actually exercised acts of possession by collecting the rents and accounting for them to the estate, taking charge of the grain raised upon the land, and such other acts of possession as McDermid himself might have exercised in his lifetime. In In re Higgins’ Estate, 15 Mont. 474, 486 (39 Pac. 506, 28 L. R. A. 116), Mr. Justice Hunt makes the following observations in a case where the person nominated in the will both as executor and trustee undertook to omit administration of the estate as executor, and attempted to function only as trustee:

“In passing upon the right of possession of realty conferred upon an executor, Field, C. J., in Weeks v. Hahn, 20 Cal. 621 (1862), held that under the Code of California, which contained at that time a provision similar to Section 127 of the Montana Probate Practice Act, that although the estate of an intestate descended to the heirs, subject to the payment of his debts, ‘yet this provision must be read in connection with the clauses of the other statutes to which we have referred, which place the right of present possession in the administrator’; and that such right of possession remained in the executor until the estate was settled, or delivered over to the heirs, by order of the probate court. And the court conclude that, under the statutes of California, which are substantially like ours, ‘the right to the possession of the real property of an intestate remains exclusively with the administrator until the estate is settled, or distribution is directed by order of the probate court. ’

“The Supreme Court of Nevada in Gossage v. Crown Point M. Co., 14 Nev. 153 (1879), discussing the possession of realty by an administrator, as given by a statute similar to that of this state, held that such possession ‘is for the benefit of the creditors and the heirs,’ a,nd for the purposes of administration. * * ”

“ ‘ * And, again, before there could be any transmutation of property, as contended by defendants’ counsel, the executor must have settled his final account of administration in the court of probate, * *.’ [Citing from Hall v. Cushing, 9 Pick. 395.] * *

“ * * ‘It is not legally correct to say that a testator has the jus disponendi of his property; it is true only sub modo. The executor, as such,- is bound to administer the whole estate, as well that not given by the will as that embraced in it. (Hays v. Jackson, 6 Mass. 149.) The first claim on the estate is that of creditors; and it cannot be known until an inventory is returned and an account settled, whether the whole estate will not be necessary for the payment of debts. * * to enable the executors to perform the trust which the law devolves upon them, the whole property must, in the first instance, come to them, and be disposed of in an orderly course of administration, which the testator cannot control. * * ’ ” [Citing from Newcomb v. Williams, 50 Mass. 525].

In Jones v. Broadbent, 21 Idaho, 555 (123 Pac. 476), the court said:

“ * * The duties of plaintiffs as executors and trustees are separate, distinct and independent of each other; and until the executors are discharged, and they assume the duties of trustees, their powers and duties as executors continue. See Bellinger v. Thompson, 26 Or. 320 (37 Pac. 714, 40 Pac. 229), and authorities there cited; In re Roach’s Estate, 50 Or. 179 (92 Pac. 118); 18 Cyc. 1112. * * ”

We think that Bourhill, as executor, was clearly required to inventory and have appraised and account for the real estate, and was entitled to commissions thereon. His claim for $500 extra compensation was disallowed, and, no appeal having been taken, it does not figure in this case. We think the court erred in allowing him $233.52 extra compensation for his attorneys; the compensation agreed upon between him and them being, in our opinion, ample. A great deal of the litigation in this case was occasioned by Bourhill’s refusal to admit the widow’s right of dower in the premises, and she has been put to trouble and expense enough in maintaining that right, without having to pay Bourhill’s attorneys for resisting a claim which this court has found to have been just and which the statute and the authorities amply sustain.

There was another objection urged, arising out of the fact that Bourhill failed to sell wheat when he could have obtained a comparatively high price for it, but held it until the price fell materially before making a sale. It appears, however, from the testimony, that in doing this he was complying with the widow’s inclinations in the matter, as well as acting upon his own judgment, and that other farmers and dealers made the same mistake. His delay in the matter, under the circumstances, affords no indication of carelessness or neglect.

Several other minor objections are made, which we do not consider well taken. The final report might be made a little clearer than it is, but an examination of it indicates that from it Mrs. McDermid or other beneficiaries under the will can arrive at the exact condition of the estate.

There is evidently a feud between the parties, probably arising’ out of the circumstances recounted in the opinion of McDermid v. Bourhill heretofore mentioned, and it seems to have gone to such a pass that both parties are willing to waste money in unnecessary litigation.

"We do not find any such defects in the final account as would justify us in sending the case back to allow the parties to indulge in their passion for litigation at further expense to the estate. The decree of the Circuit Court will be modified by disallowing the item of extra compensation for attorneys’ fees, and neither party will recover any costs in this court; otherwise, the decree of the Circuit Court will be sustained. Modified.

Burnett, J., not sitting. Mr. Justice Harris having resigned and Mr. Justice Coshow having been appointed since this case was submtted, neither took part in this decision.