Gulick v. Nelson , 176 Or. 610 ( 1945 )

It will be noted that the order of the probate court admitting said questioned document to probate was made more than one year subsequent to the order of final settlement of said estate. Based upon that state of the record, it is contended by appellant that the probate court was without jurisdiction to make the order from which the appeal was taken to the circuit court.

It is also contended that the procedure approved in probating a will in common form by giving effect to affidavits of attesting witnesses identifying such will by reference to attached photostatic copies is not the proper method by which to secure an order admitting to probate a will found subsequent to the issuance of letters of administration.

The contention that the probate court had no authority to revoke the letters of administration after the expiration of one year from the entry of its order approving the final account of the administrator is based upon the doctrine announced inLothstein v. Fitzpatrick, et al, 171 Or. 648, 138 P.2d 919, and authorities there cited.

We are not called upon to consider the propriety or impropriety of the part of the circuit court's decree that reverses that part of the order of the probate court which revoked the letters of administration issued by the probate court. The administrator, Mr. F.A. Gulick, does not challenge that part of the circuit court's decree either by argument or assignment of error. The proponent of the will in suit, Mrs. Nelson, has not appealed and hence a decree more favorable to her than that of the circuit court would be unwarranted. Sutherlandv. Wickey, 133 Or. 266, 271, 289 P. 375; Coston v. PortlandTrust Co., et al, 131 Or. 71, 77, 282 P. 442; Coast Engine Machine Works v. Barbee, 130 Or. 159, 279 P. 264; Davis v.Davis, 123 Or. 667, 263 P. 914; Adams v. Kennard, 122 Or. 84,96, 222 P. 1092; Ontario Advancement Co. v. Stevens, 113 Or. 564, 231 P. 127; Johnson v. Prineville, 100 Or. 105, 118-119,196 P. 817; Crumbley v. Crumbley, 94 Or. 617, 186 P. 423; Carov. Wollenberg, 83 Or. 311, 163 P. 94; Flinn v. Vaughn, 55 Or. 372, 106 P. 642; Bank of Commerce v. Bertrum, 55 Or. 349,104 P. 963, 106 P. 444; McCoy v. Crossfield, 54 Or. 591,104 P. 423; Board of Regents v. Hutchinson, 46 Or. 57, 78 P. 1028;Goldsmith v. Elwert, 31 Or. 539, 50 P. 867; Cooper v.Thomason, 30 Or. 161, 45 P. 295; Thornton v. Krimbel, 28 Or. 271, 42 P. 995; Shirley v. Burch, 16 Or. 82, 18 P. 351, 8 Am. St. Rep. 273; Shook v. Colohan, 12 Or. 239, 6 P. 503.

The only questions before us pertain to the validity or invalidity of the order of the probate court admitting the will in suit to probate.

As stated, proof of the execution of the will in suit was made by means of affidavits identifying photostatic copies of said purported will. This discloses that the probate court and the proponents of said will deemed the proceeding one merely to probate said will in common form. Manifestly, it was not a contest wherein the proponents sought an order of probate in solemn form.

This then presents the question whether an order admitting a will to probate in common form is appealable.

Statutory provisions in other jurisdictions differ from those in this jurisdiction so widely that the decisions therefrom to which our attention has been called are not in point.

In Jenkins v. Jenkins, 144 Ark. 417, 222 S.W. 714, andSecurity Trust Co. et al v. Swope, 274 Ky. 99, 188 S.W.2d 200, it is held that an appeal may be taken from an order of the probate of a will in common form; but, as stated, these opinions rest upon statutory provision widely different from ours.

In order to justify an appeal from an order of probate in common form, we must hold that such order is one which in effect determines the action or suit so as to prevent a judgment or decree. Section 10-801, Vol. 2, O.C.L.A. This, we know, is not so. Such an order does not prevent a contest or a decree resulting therefrom. It is, therefore, not an appealable order.

For the reason that the appeal herein affects only that part of the decree of the circuit court affirming the order of the probate court admitting the will in suit to probate in common form, said appeal should be and it is dismissed.

In the probate and circuit courts, the late Mr. Fred E. Smith was attorney for respondent Mrs. Nelson. His lamentable death, which occurred on March 23, 1945, doubtless accounts for the fact that no appearance was made by Mrs. Nelson on this appeal.

Appeal dismissed.