in the county where administration is granted, the proceeding may be either before the court or judge thereof of such county, or before the court or judge thereof of the county where such person resides or may be found. In the latter case, a certified copy of the written interrogatories, if any, and the examination or other proceeding thereon or connected therewith, shall be filed with the clerk of the court where administration is granted. [L. 1862; D. Cd. § 1090; H. C. § 1122] § 1150. Proceedings in Case Such Person Refuses to Appear and Answer. If the person so cited refuse to appear, or to answer such interrogatories as may be allowed to be put to him touching the matter charged, he may be punished for a contempt, or may at once be committed, by the warrant of the judge, to the county jail, there to remain in close custody until he submits to the order of the court or judge. [L. 1862; D. Cd. § 1091; H. C. § 1123.] § 1151. Person Intrusted with Property of Estate Compelled to Account. The court or judge thereof, upon the application of the executor or administrator, may cite any person who has been intrusted with any of the property of the deceased, to appear and answer concerning the same when it appears probable that such person refuses or neglects to render to the executor or administrator a true account thereof. The application shall be made and the proceeding conducted in the manner prescribed in sections. 1148, 1149, and 1150, concerning property or writings alleged to be concealed, and with like effect. [L. 1862; D. Cd. § 1092; H. C. § 1124.] § 1152. Damages for Conversion of Property Before Administration. If any person shall, before administration is granted, embezzle, alien, or in any way convert to his own use any of the property of a deceased person, he is liable to the executor or administrator in double the amount of damages which may be assessed therefor. [L. 1862; D. Cd. § 1093; H. C. § 1125.] CHAPTER IV. OF THE SUPPORT OF THE WIDOW AND MINOR CHILDREN. § 1153. Provision for Widow or Minor Children Before Administration, Until administration of the estate has been granted and the inventory filed, the widow and minor children of the deceased are entitled to remain in the possession of the homestead, all the wearing apparel of the family and household furniture of the deceased, and also to have a reasonable provision for their support during such period, to be allowed by the court or judge thereof. [L. 1862; D. Cd. § 1094; H. C. § 1126.] The provision made for the widow in this section is intended to be in lieu of dower during the administration of the estate; therefore, she is not entitled to an assignment of dower in the lands of her deceased husband until after the administration is completed: Leonard v. Grant, 8 Or. 276. This section does not repeal or modify the section allowing the widow to remain in the dwelling house of her husband for one year without being chargeable for rent: Aiken v. Aiken, 12 Or. 203, 6 Pac. 682. 4 § 1154. Property Set Apart to Widow-Such Property, how Used. Upon the filing of the inventory, the court or judge thereof shall make an order, setting apart, for the widow or minor children of the deceased, if any, all the property of the estate by law exempt from execution. The property thus set apart, if there be a widow, is her property, to be used or expended by her in the maintenance of herself and minor children, if any; or if there be no widow, it is the property of the minor child; or if more than one, of the minor children in equal shares, to be used or expended in the nurture and education of such child or children, by the guardian thereof, as the law directs. [L. 1862; D. Cd. § 1095; H. C. § 1127.] The court may appoint a commissioner, with the consent of the widow, to make selection of her dower, and on approval of such selection it becomes the act of the court; and if the widow is satisfied, and the § 1155. Further Order for Support, when Made. If the property so exempt is insufficient for the support of the widow and minor children, according to their circumstances and condition in life, for one year after the filing of the inventory, the court or judge thereof may order that the executor or administrator pay to such widow, if any, and if not, then to the guardian of such minor children, an amount sufficient for that purpose; but such order shall not be made unless it appear probable that the estate is sufficient to satisfy all the debts and liabilities of the deceased, and pay the expenses of administration in addition to the payment of such amount. [L. 1862; D. Cd. § 1096; H. C. § 1128.] The right of the county court to make an order allowing an amount for the support of the widow can not be controverted, when it sufficiently appears that the estate is sufficient to satisfy all the debts and liabilities of the deceased, and to pay the expenses of administration, together with such allowance: Re Dekum's Estate, 28 Or. 99. 41 Pac. 159. The fact that a widow, prior to the ob taining by the executors of an order of § 1156. When the Whole Estate to be set Apart to Widow and Children. If from the inventory of an intestate's estate, who died leaving a widow or minor children, it appears that the value of the estate does not exceed one hundred and fifty dollars over and above property exempt from execution, upon the filing of the inventory the court or judge thereof shall make a decree providing that the whole of the estate, after the payment of funeral expenses and expenses of administration, be set apart for such widow or minor children. in like manner and with like effect as in case of property exempt from execution. There shall be no further proceeding in the administration of such estate, unless further property be discovered. [L. 1862; D. Cd. § 1097; H. C. § 1129.] § 1157. When Estate All to be Deemed Assets. If an intestate leave neither widow nor minor children, all the property of the estate is assets in the hands of the administrator, for the payment of funeral expenses, expenses of administration, payment of the debts of the deceased, or distribution according to law. [L. 1862; D. Cd. § 1098; H. C. § 1130.] CHAPTER V. OF CLAIMS AGAINST THE ESTATE. § 1158. Publication of Notice by Executor or Administrator, and Contents Thereof. Every executor or administrator shall, immediately after his appointment, publish a notice thereof, in some newspaper published in the county, if there be one, or otherwise in such paper as may be designated by the court or judge thereof, as often as once a week, for four successive weeks, and oftener if the court or judge shall so direct. Such notice shall require all persons having claims against the estate to present them, with the proper vouchers, within six months from the date of such notice, to the executor or the administrator, at a place within the county therein specified. [L. 1862; D. Cd. § 1099 ; H. C. § 1131.] To present a claim against an estate means to display or proffer the claim properly verified, and to leave it with the executor or administrator a reasonable length of time to enable him to determine its validity: Willis v. Marks, 29 Or. 501, 45 Fac. 293; and after a reasonable time for inspection, the person who exhibits the claim is entitled to its possession again. A verified claim against decedent's estate, presented by the assignee thereof to the administrator thereof for allowance, may be recovered by replevin action on refusal of the administrator to surrender it, after he has had a reasonable opportunity to examine it: Willis v. Marks, 29 Or. 493, 45 Pac. 293. Failure of an executor for more than six months to file an inventory or to publish a notice calling on creditors to present their claims, is a sufficient reason for his removal, in the discretion of the probate court: Re Barnes' Estate, 36 Or. 282, 59 Where it does not appear that one having a claim against an estate is injured by the failure of the executor to publish a notice as required by this section, such claimant can not urge such objection against the allowance of the executor's final account: Conser's Estate, supra. Effect of not Presenting Claim According to Before the expiration of the six months mentioned in the last section, a copy of the notice as published, with the proper proof of publication, shall be filed with the clerk. A claim not presented within six months after the first publication of the notice is not barred, but it can not be paid until the claims presented within that period have been satisfied; and if the claim be not then due, or if it be contingent, it shall nevertheless be presented as any other claim. Until the administration has been completed, a claim against the estate not barred by the statute of limitations may be presented, allowed, and paid out of any assets then in the hands of the executor or administrator not otherwise appropriated or liable. [L. 1862; D. Cd. § 1100; H. C. § 1132.] 1160. Claim, how Presented and Verification Of. Every claim presented to the executor or administrator shall be verified by the affidavit of the claimant, or some one on his behalf, who has personal knowledge of the fact, to the effect that the amount claimed is justly due, that no payments have been made thereon, except as stated, and that there is no just counterclaim to the same, to the knowledge of the affiant. When it appears or is alleged that there is any written evidence of such claim, the same may be demanded by the executor or administrator, or that its nonproduction be accounted for. [L. 1862; D. Cd. § 1101; H. C. § 1133.] § 1161. Allowance or Rejection of Claim - If Barred not to be Allowed. When the claim is presented to the executor or administrator, as prescribed in the last section, if he shall be satisfied that the claim thus presented is just, he shall indorse upon it the words "examined and approved," with the date thereof, and sign the same officially, and shall pay such claim in due course of administration; but if he shall not be so satisfied, he shall indorse thereon the words "examined and rejected," with the date thereof, and sign the same officially. Every executor or administrator shall keep a list of all demands legally exhibited against the estate of the testator or intestate, and shall, every three months, file with the county court a statement of all such claims as have been presented, and whether the same have been allowed or rejected by him. If any executor or administrator shall refuse to allow any claim or demand against the deceased, after the same may have been exhibited to him in accordance with the provisions of this act, said claimant may present his claim to the county court for allowance, giving the executor or administrator ten days' notice of such application to the court. The court shall have power to hear and determine in a summary manner all demands against any estate agreeably to the provisions of this act, and which have been so rejected by the executor or administrator, and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment from which an appeal may be taken as in ordinary cases: Provided, that no claim which shall have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant. No claim shall be allowed by the executor or administrator or the county court which is barred by the statute of limitation. [L. 1862; D. Cd. § 1102; L. 1885, p. 44, § 1; H. C. § 1134.] See note to § 1158. A claim must be verified by the claimant: Zachary v. Chambers, 1 Or. 321. When there is no legal presentment of a claim to the administrator within the time prescribed, no action can be maintained on such claim: Zachary v. Chambers, supra. Section 4 of the act of January 14, 1853, was, in substance, identical with this section, except that it provided that the claim should be verified by the "affidavit of the claimant," omitting the words "or some one on his behalf." The supreme court held that the affidavit must be made by the claimant himself, and that a claim verified settlement of the administration accounts, maintain a suit in equity to recover the claim from the next of kin of the deceased person out of the distributive share which he may have received: Grange Union v. Burkhart, 8 Or. 51. A creditor who has acquired an attachment lien before the death of the defendant, does not lose his right to enforce such lien by presenting the claim on which the action was based to the administrator of the deceased and having it allowed: White v. Ladd, 34 Or. 429, 56 Pac. 515. A mortgagor, after presenting his claim, whether it be rejected or allowed, may proceed in a court of equity to foreclose the lien upon the property: Verdier v. Bigne, 16 Or. 210, 19 Pac. 64. Where a person has a note secured by a mortgage against the deceased, he need not present his claim for allowance to the executor of said deceased, but may proceed against the property either then or after the six months allowed for presenting the claim. The only difference made by his failure to present his claim is that he must look entirely to the mortgaged property for his payment, and can not recover a personal judgment against the estate for any balance of the debt: Teel v. Winston, 22 Or. 489, 29 Pac. 142. Complainant's bill against the administratrix alleged that one who had been indebted to deceased and complainant had assigned a judgment to decedent on an understanding between all parties that deceased should collect the judgment, discharge his claim, and then pay the balance to plaintiff, or that, on receiving the sum duc, he would assign the judgment to plaintiff; that deceased had collected his claim; that the administratrix refused to assign, and that the money due on the judgment had been deposited with the clerk of the county court, to which sum plaintiff was entitled. Held, that the bill was not objectionable on the ground that plaintiff's demand was an ordinary one against the decedent's estate, of which the county court had exclusive jurisdiction, but was a suit to impress on the estate a lien for a trust fund within the equity jurisdiction of the circuit court: Dunham v. Siglin, 39 Or. 291, 64 Pac. 661. An action may be maintained against the estate of a deceased person, without presentation to the county court for allowance, under this section: Ray v. Hodge, 15 Or. 20, 13 Pac. 599. The mere allowance of a claim by the administrator does not make out a prima facie case in favor of its validity, if objected to on final accounting, but claimant must substantiate his claim by proof: Re Chambers' Estate, 38 Or. 131, 62 Pac. 1013. The decision of the county court in summarily settling a claim, under this section, is a judgment and not a decree, and on an appeal from the decision of the county court, the appellant is entitled to a jury trial in the circuit court. The transcript need not contain the evidence, since the case is at law and not in equity: Johnston v. Shofner, 23 Or. 111; Wilkes v. Cornelius, 21 Or. 341, 28 Pac. 135. Although no formal pleadings are required in a summary adjudication by the county court, yet the trial in such a case must be had upon the claim as presented, and it is error to admit evidence of an express agreement in support of a claim based on a quantum meruit: Wilkes v. Cornelius, 21 Or. 348, 28 Pac. 135. Under the provision that no claim rejected by the administrator shall be allowed, except upon evidence other than that of the claimant, the production of a note, with payments indorsed thereon after such note was barred by the statute, and the testimony of a stranger that decedent once gave him money to deliver to plaintiff as payment "on that note," does not identify the note, nor show part payment of an admitted larger debt, and is insufficient to establish such a claim, for in order to give a payment made on a debt against which the statute has run the effect of reviving the obligation, it must clearly appear that it was made and received as part of a larger indebtedness, and under such circumstances as to warrant a jury in finding an implied promise to pay the balance: Harding v. Grim, 25 Or. 506, 36 Pac. 634. Where, in an action by a daughter against her father's executor to establish a rejected claim against his estate, she introduces in evidence a power of attorney from her to her father to sell certain real estate and to manage the proceeds thereof, and a deed showing such sale by him for a designated amount nearly twenty years before, and testifies herself that he had sent her only a few dollars, she has made out a sufficient case under this section, providing that no rejected claim shall be allowed except upon competent evidence other than the testimony of the claimant: Quinn v. Gross, 24 Or. 150, 33 Pac. 535. A verified claim against the decedent's estate, presented by the assignee thereof to the administrator for allowance, may be recovered by a replevin action on the refusal of the administrator to surrender it after he has had a reasonable opportunity to examine it: Willis v. Marks, 29 Or. 498, 45 Pac. 293. If the affidavit to a claim against the estate of a decedent contains the substance of the statutory requirements, but the claim is irregular in form, and is rejected by the administrator on that account, he should specify the nature of his objections; otherwise, he will be deemed to have waived them: Aiken v. Coolidge, 12 Or. 244, 6 Pac. 712. If there is no limitation to the time within which a claim may be presented against the estate, a delay in the proceedings is not ground for refusing an application by the administrator to sell real property: Re Estate of Houck, 23 Or. 10, 17 Pac. 461. § 1162. Judgment Against Executor or Administrator, Effect of. The effect of a judgment or decree against an executor or administrator, on account of a claim against the estate of his testator or intestate, is only to establish the claim, as if it had been allowed by him, so as to require it to be satisfied in due course of administration, unless it appear that the complaint alleged assets in his hands applicable to the satisfaction of such claim, and that such allegation was admitted or found to be true, in which case the judgment or decree may be enforced against such executor or administrator personally. [L. 1862; D. Cd. § 1103; H. C. § 1135.] |