Where an executor or administrator, believing he has assets sufficient to pay all debts. suffers judgment against himself, he will be relieved in equity, if the assets become insufficient through an unexpected depreciation of their value. The reason is that the defense arises subsequently to the judgment, and without fault of the administrator; but if an executor or administrator confesses judgment against himself for a debt of his testator or intestate, upon a miscalculation of assets in his hands, and it appears afterwards that the assets are insufficient to satisfy it, he will not be relieved in equity against the judgment: Brenner v. Alexander, 16 Or. 351, 19 Pac. 9, 8 Am. St. Rep. 301. $ 1163. Judgment Against Deceased in his Lifetime. A claim established by judgment or decree against the deceased in his lifetime need not be verified by affidavit, but it is sufficient to present a certified copy of the judgment docket thereof to the executor or administrator for allowance or rejection, as in other cases; but this section is not to be construed to prevent an execution from being issued upon such judgment or decree, as elsewhere provided in this code. [L. 1862; D. Cd. § 1104; H. C. § 1136.] A judgment creditor, whose judgment was recovered against the debtor during the lifetime of the latter, is entitled to have an execution on the judgment against the property of the debtor, or for the delivery of real or personal property, notwithstand Bower v. ing the death of such debtor: The holder of a judgment is not required to present his claim established by the judgment to the executor for allowance: Knott v. Shaw, 5 Or. 484. § 1164. When and how Claim May be Referred. If the executor or administrator doubt the validity of any claim presented to him, he may agree in writing with the claimant that an order of reference be made by the court or judge thereof concerning the same. Upon the filing of such agreement, such court or judge shall make the order accordingly. [L. 1862; D. Cd. § 1105; H. C. § 1137.] $ 1165. Proceedings by Referee and Effect Of. The referee shall proceed to hear and determine the matter, and report thereon to the court, where the order of reference was made, in the same manner and with like effect as if the order was made in an action or suit upon such claim. [L. 1862; D. Cd. § 1106; H. C. § 1138.] § 1166. Claim of Executor or Administrator. If the executor or administrator is himself a creditor of the testator or intestate, his claim, duly verified, may be presented to the court or judge thereof, for allowance or rejection; but the allowance of such claim by such court or judge does not conclude a creditor, heir, or other person interested in the estate, in any action, suit, or proceeding between such executor or administrator and such creditor, heir, or other person. [L. 1862; D. Cd. § 1107; H. C. § 1139.] $1167. Such Claim May be Determined on the Settlement of Final Account. If the court or judge thereof reject the claim of the executor or administrator, either in whole or in part, or in case the same is not presented for allowance as provided in the last section, the executor or administrator may retain the amount thereof until the final settlement of his accounts, when, if the same is controverted or objected to by any person interested in the estate, the right of the executor or administrator to have the allowance claimed shall be tried and determined by the court. If the claim is not presented to the court or judge, as provided in section 1166, before it is barred by the statute of limitations, such claim can not be allowed, retained, or recovered. [L. 1862; D. Cd. §1108; H. C. § 1140.] CHAPTER VI. OF THE SALE OF PROPERTY BY EXECUTORS OR ADMINISTRATORS. § 1168. Sale of Property, how made, and Application Therefor. No sale of the property of an estate is valid unless made by order of the court or judge thereof, as in this title prescribed, unless herein otherwise provided. The application for an order of sale shall be by the petition of the executor or administrator, and in case of real property, a citation to the heirs and others interested in such property. [L. 1862; D. Cd. § 1109; H. C. § 1141.] No sale without an order of court, on petition by the administrator and citation to the heirs and others, is valid: Wright v. Edwards, 10 Or. 301; Gilmore v. Taylor, 5 Or. 89. By the death of the mortgagor the mortgagee is hot compelled to present his claim to the executor, but may proceed against the land without any proceeding whatever in the probate matter: Verdier v. Bigne, 16 Or. 209, 19 Pac. 64. A judgment creditor, whose judgment was recovered against the debtor during the lifetime of the latter, is entitled to have an execution issued on the judgment against the property of the debtor, or for the delivery of real or personal property, notwithstanding the death of such debtor: Bower v. Holladay, 18 Or. 491, 22 Pac. 553. A sale of real property belonging to the estate of a deceased person, made by an executor or administrator thereof, under an order of the county court sitting in probate, and having jurisdiction over the estate, is not necessarily void, although the petition for the order of sale, the citation to the heirs, and the service of the citation are defective. Such defects, under the curative acts of 1874 and 1878, should be disregarded, where the property sold at such sale has been purchased for a valuable consideration, which has been paid by the purchaser to the executor or administrator, or his successor, in good faith, and the sale has not been set aside, but has been confirmed and acquiesced in by the court: Mitchell v. Campbell, 19 Or. 198, 24 Pac. 455. At common law the title to personal property was vested in the executor or administrator, and he had full power to dispose thereof by sale, but the statute has limited that right to the sale of only such personal property as is visible and tangible, except by an order of the probate court. With this difference, the power of disposition remains as at common law. He may sell or dispose of the choses in action, by indorsement to another or to a distributee, without an order of the probate court, and such transfer passes the title so as to enable the transferee or distributee to maintain an action thereon: Weider v. Osborne, 20 Or. 310, 25 Pac. 715. When the real property has been devised to trustees to be held by them for the purpose of paying testator's debts, and the residue for other purposes, the legal title vests in them, and they have power to sell the land for money to pay the debts without an order of the probate court; nor is it necessary that such sale should be confirmed by inat court: Brown v. Brown, 7 Or. 285. See, however, Northop v. Marquam, 16 Or. 173, 8 Pac. 449, annotated below. In an order of sale of property of deceased persons, a mistake in making up the record will be presumed rather than that the order was made before the return day: Russell v. Lewis, 3 Or. 380. The administrator shall sell as much real property as is necessary to pay claims against the estate when the personalty is exhausted. The tender of the amount of a legitimate claim against the decedent's estate, made by his heir's grantee, conditioned upon the assignment of such claim to the party making such tender is invalid, and constitutes no legal ground for refusing an order of sale of the real estate to pay such claim: Weill v. Clark, 9 Or. 387. The sale of the decedent's real estate to pay the debts, by virtue of an order of the probate court, is void as to an infant heir not made a party to the proceedings, for whom no guardian was appointed. Such proceedings are hostile to the heirs, who are necessary parties, and the probate court must have jurisdiction of the persons, as well as the subject-matter, in the manner provided for in the statute, or the sale will be void: Fiske v. Kellogg, 3 Or. 503. One who purchases land at a sale by an administrator who has been disqualified by failing to file a new undertaking, etc., without knowledge of his disqualification, will be entitled to relief in equity: Levy v. Riley, 4 Or. 392. If a petition to the county court for an order to sell real estate of the intestate omits wholly to allege material facts essential to confer jurisdiction, the court without authority to act, and its proceedings are a nullity, and confer no right or title: Wright v. Edwards, 10 Or. 298. is While the constitution provides that the county court shall have jurisdiction per taining to probate courts, its authority to order the sale of real property of the intestate is derived entirely from the statute. Proceedings are required to be in writing, and the power of the court is brought into action by means of a verified petition by the administrator: Wright v. Edwards, 10 Or. 298. Where a petition is presented for the sale of real property of a decedent to pay debts, the only proper inquiries are, whether there are legitimate claims unpaid, and whether the proceeds of the sale of personal property have been exhausted. The question of heirship does not arise until the final distribution of the estate: Re Estate of Houck, 23 Or. 10, 17 Pac. 461. When a testator makes a provision in his will for the sale of land of which he died seised, the executor may sell the same by virtue of the power conferred by the will, but such sale must be reported to the county court and confirmed as in other cases of sale of real property by executors or administrators: Northop v. Marquam, 16 Or. 173, 18 Pac. 449. The mere charging land with specified debts does not give the executor of the will creating the charge power to sell the lands; they descend to the heir or devisee subject to the charge: Worley v. Taylor, 21 Or. 589, 28 Pac. 903. Where a will fails to name or provide for a child, the will is void as to such child, and a sale of land by the executor under authority of the will does not divest the child's estate therein: Worley v. Taylor, 21 Or. 589, 28 Pac. 903. The county court has jurisdiction to license the sale of lands by a guardian appointed by itself, upon the presentation by such guardian of a verified petition therefor, stating the condition of the ward's estate, and the circumstances tending to show the necessity of expediency of such sale, and the petition is sufficient to give jurisdiction, when the order granting the license is collaterally attacked, if it appears therefrom, or by reasonable inference from the facts stated therein, that the ward had no income, and that it was necessary to sell the land to maintain him in the insane asylum, as provided by law: Sprigg v. Stump, 8 Fed. 207. 1169. Order of Sale of Personal Property. Upon the filing of the inventory, or at the next term of the court, the executor or administrator may make an application to sell the personal property of the estate for the purpose of paying the funeral charges, expenses of administration, the claims, if any, against the estate, and for the purposes of distribution; and it shall be the duty of the court or judge to grant such order, if in his judgment it is for the best interest of the estate, and to direct and prescribe the terms of sale upon which such property shall be sold. whether for cash or on credit. [L. 1862; D. Cd. § 1110; L. 1891, p. 143, § 1; H. C. § 1142.] The personal estate of a decedent is primarily chargeable with the debts and expenses of administration, but when the estate is sufficient, the testator may exonerate the personal estate, and charge it upon the real estate: Worley v. Taylor, 21 Or. 592, 28 Pac. 903. make an order for the sale of real estate to liquidate any expenses or debts, and the only inquiries when such petition is presented are whether there are legitimate debts unpaid, and whether the proceeds of the sale of personal property have been exhausted. The question of heirship does not arise: Re Estate of Houck, 23 Or. 10, When a proper showing is made under this section, the court can not refuse to 17 Pac. 461. § 1170. Sale of Property Under Order, and Manner Thereof. Thereafter the executor or administrator shall sell such personal property from time to time for the purposes specified in the last section, and as often and as much thereof as may be necessary. Such sale shall be conducted in the same manner as a sale of personal property on execution, unless otherwise provided in this chapter. [L. 1862; D. Cd. § 1111; H. C. § 1143.] § 1171. Personal Property May be Sold at Private Sale - Articles Exempt from Sale. If, upon the application for an order of sale, or upon a subsequent application for that purpose, it appears to the court or judge that it would be for the interest of the estate, it may order that the executor or administrator may sell all the personal property of the estate or any article thereof at private sale. If any articles of personal property have been specially bequeathed, they are to be exempt from the operation of the order of sale so long as any property of the estate not specially devised or bequeathed remains unsold or appropriated to the purposes specified in section 1169. [L. 1862; D. Cd. § 1112; H. C. § 1144.] See note to preceding sections. Under this section the court may order an executor to sell a stock of goods in the regular course of business, and the necessary expenses of lighting, clerk hire, rent, etc., incurred for this purpose, should be allowed in the final settlement as expenses of administration: Re Osborn's Estate, 36 Or. 12, 58 Pac. 521. § 1172. When Real Property May be Sold-When same Specially Devised. When the proceeds of the sale of personal property have been exhausted, and the charges, expenses, and claims specified in section 1169 have not all been satisfied, the executor or administrator shall sell the real property of the estate, or so much thereof as may be necessary for that purpose. If any of such real property have been specially devised, it shall be exempt from the operation of the order of sale in the same manner as personal property specially bequeathed. [L. 1862; D. Cd. § 1113; H. C. § 1145.] See note to preceding sections. 1173. Petition for Order of Sale of Real Property, what to Contain. The petitioin for the order of sale of real property shall state the amount of the sales of personal property, the charges, expenses, and claims still unsatisfied, so far as the same can be ascertained, a description of the real property of the estate, the condition and probable value of the different portions or lots thereof, the amount and nature of any liens thereon, the names, ages, and residence of the devisees, if any, and of the heirs of the deceased, so far as known. [L. 1862; D. Cd. § 1114; H. C. § 1146.] See note to preceding sections. § 1174. Citation to Show Cause on Application to Sell Real Property. Upon the filing of the petition a citation shall issue to the devisees and heirs therein mentioned, and to all others unknown, if any such there be, to appear at a term of court therein mentioned, not less than ten days after the service of such citation, to show cause, if any exist, why an order of sale should not be made as in the petition prayed for. L. 1862; D. Cd. § 1115; H. C. § 1147.] $1175. Service of Citation. Upon an heir or devisee, known and resident within this state, such citation shall be served and returned as a summons; and upon an heir or devisee, unknown or nonresident, it may be served by publication in a newspaper published in the county chosen by the administrator or executor, not less than four weeks, or for such further time as the court or judge may prescribe. When service of the citation is made by publication, there shall be published with it a brief description of the property described in the petition. [L. 1862; D. Cd. § 1116; H. C. § 1148; L. 1901; p. 398, § 1.] § 1176. Hearing and Order of Sale. If, upon the hearing, the court find that it is necessary that the real property, or any portion thereof, should be sold, it shall make the order. accordingly, and prescribe the terms thereof, whether of cash or credit, or both; and if the court find that such property can not be divided without probable injury and loss to the estate, it may order that it, or any specific lot or portion thereof, shall be sold wholly, whether otherwise necessary or not. [L. 1862; D. Cd. §1117; H. C. § 1149.] § 1177. Sale, how Made Security for Purchase Money, how Taken. Upon the order being made, the executor or administrator shall sell the property therein specified upon the terms therein directed, and in the manner herein otherwise provided. Such sale shall be made in the same manner, if sold at public auction, as like property is sold on execution: Provided however, that the judge may, if thought best, order said property to be sold on the premises: Provided further, that if upon application for an order of sale, or upon a subsequent application for the purpose, it appears to the court. or judge that it would be for the best interest of the estate, the court or judge may order that the executor or administrator may sell all the real property of the estate or any part thereof at private sale. Before proceeding to sell the real property of an estate at private sale as aforesaid, the executor or administrator shall publish a notice, particularly describing the property to be sold, for four weeks successively in a newspaper of the county where the property is to be sold, if there be one, or if none, then in a newspaper published nearest to the property to be sold, which notice shall also state the terms of sale, and that from and after a day certain named therein that the executor or administrator shall proceed to sell the real estate described in said notice at private sale: Provided, that all sales of real property made at private sale shall be reported to the county court in the same manner and be subject to resale and require confirmation in the same manner as other sales of real property made by executors or administrators. That the executor or administrator shall post copies of said notice in three public places of the county in which the property to be sold is situated. When the sale is upon credit, the executor or administrator shall take the note of the purchaser for the purchase money, with a mortgage upon the property to secure the payment thereof: Provided, that when the inventory of any estate shows, or it otherwise appears to the satisfaction of the county court or judge thereof, that all the property left by the deceased within the jurisdiction of the court does not exceed in value the sum of three hundred and fifty dollars, the county court or judge thereof may order the property sold, if any sale thereof be necessary. without notice, or upon such notice as the court or judge thereof may direct in a summary manner, at public or private sale, and with or without appraisement; and in such cases the notice of the appointment of the administrator may be given by posting the same in three public places of the county for four weeks successively, and notice of the filing of the final account may be given in the same manner. [L. 1862; D. Cd. § 1118; L. 1876, p. 11, § 1; H. C. §1; § 1150; L. 1893, p. 96.] |
