Argued on the merits February 9; modified February 24; petition for rehearing denied April 13, 1943 ON THE MERITS (134 P.2d 428) Proceeding in the matter of the estate of H.A. Dedman, deceased, by Blanche J. Dedman against Paul R. Biggs, administrator with the will annexed of the estate of H.A. Dedman, deceased, to recover reasonable value of services performed subsequent to death of decedent in auditing the books and accounts of deceased and in making collections at the instance of a former administrator and to recover the further sum *Page 699 of $250, attorney's fee. From an order allowing petitioner only $317 and $75 attorney's fee, the petitioner appeals.
MODIFIED. REHEARING DENIED. This is a proceeding instituted in the probate department of the Circuit Court of Clackamas county, by petitioner Blanche J. Dedman, to recover $1,387.50 [less an admitted payment] as the reasonable value of services performed by her subsequent to the death of H.A. Dedman, in auditing the books and accounts of deceased and in making collections at the instance of Livy Stipp, who was then the administrator of the estate of said H.A. Dedman, deceased, and to recover the further sum of $250, attorney's fee. From an order allowing petitioner only $317 and $75 attorney's fee, claimant appeals.
On January 20, 1942, this matter was before this court upon a motion by defendant to dismiss the appeal and upon a motion by petitioner for a rule and order remanding the statement of exceptions to the court below for amendment and further certification. Both motions were denied. 121 P.2d 466.
The motion to dismiss was denied, because the pleadings and the order of the trial court were before us and, on appeal, such record presents the question of the sufficiency of the pleadings to support the final order.
The motion for an order remanding the statement of exceptions for amendment was denied because this *Page 700 proceeding is an equitable proceeding and no bill of exceptions or statement of exceptions is required.
No properly authenticated transcript of testimony was filed; and hence we have but the single question of the sufficiency of the pleadings to support the final order.
The pleadings consist of a petition alleging the performance of services by the petitioner at the instance of the administrator of the estate of H.A. Dedman, deceased, the alleged reasonable value thereof, the receipt of a partial payment of $50, and the allowance to petitioner and her sister of an additional sum of $150 which has not been accepted; and an answer thereto filed by one of the administrators.
The services are alleged to have consisted in part of clerical services in organizing and compiling a very large number of accounts and records and supervising employees in connection therewith over a period of twelve and one-half months, the reasonable value of which services being alleged to be $75 per month aggregating $937.50.
In addition to the services just mentioned, the petitioner alleges the performance of further services in making collections in aggregate sum of $1,800 on accounts owing to said estate, the reasonable value of which is alleged to be twenty-five per cent of the amount so collected, which is $450.
The petition admits the receipt on April 17, 1937, by petitioner of the sum of $50 upon her said claim and an allowance on November 4, 1938, by the court to her and her sister of the sum of $150, no part of which has ever been received by or paid to the petitioner or her sister. *Page 701
The petition also alleges that more than forty-eight hours elapsed and expired after the presentation of petitioner's demand to the administrators and since the termination of petitioner's services, and that the sum of $250 is a reasonable amount to be allowed petitioner as attorney's fees herein.
The following is the text of said administrator's answer:
"The defendant, one of the Administrators of the above entitled estate, for answer to the petition of Blanche J. Dedman on file herein, admits, denies and alleges as follows:
I.
Denies each and every allegation contained in the said petition and the whole thereof, and particularly denies that the estate owes the petitioner, Blanche J. Dedman, the sum of $1,337.50 or any sum at all, except the sum of $150.00 as ordered by the above entitled court in its order titled `Accepting Resignation of Livy Stipp' dated November 4, 1938; and further particularly denies that the sum of $250.00 is a reasonable attorney's fee.
Wherefore, the defendant prays that the petition of Blanche J. Dedman be dismissed and the sum of $150.00 as ordered by the above entitled Court, be paid."
The pertinent part of the final order, from which said petitioner's appeal is prosecuted, is as follows:
"The court having considered said testimony and evidence and the allegations of said petition and answer; and being advised in the premises, it is now by the court
Ordered as follows:
*Page 702(1) That the item of $937.50 in said petition for clerical services in the preparation of itemized statements of the accounts of individual patients of the decedent, is hereby disallowed in its entirety:
(2) The item if [of] $450.00 in said petition for the collection of $1800.00 for said estate is hereby allowed, subject to a deduction of $50.00 paid to said petitioner on the 17th day of April, 1937 and subject to a further deduction of $83.00 for work and produce received by said petitioner, leaving a balance to be paid to said petitioner of $317.00
(3) The additional sum of $75.00 is allowed said petitioner as and for attorney's fees herein."
We find nothing in the pleadings which supports the deduction of $83 for work and produce received by petitioner. There is no admission in the petition that would justify such deduction and no counterclaim alleged in the same answer.
Counsel for petitioner urges us to remand this proceeding for a new trial in order to enable petitioner to make a record in conformance with approved, equitable procedure and thus give her the privilege of bringing a properly authenticated transcript of the testimony to us upon a second appeal. The basis for this request as stated by counsel is that the former opinions of this court are susceptible of a construction contrary to the opinion rendered herein to the effect that this is an equitable proceeding. Three former opinions are cited to that point, namely: In re Mills' Estate, 40 Or. 424, 67 P. 107; In reMurray's Estate, 56 Or. 132, 107 P. 19; and In re Baker'sEstate, 156 Or. 256, 67 P.2d 185.
As the writer understands the doctrine of the Mills case, it is that an attorney, whose claim is based upon services performed for the administrator and whose claim has been allowed by the court in the manner prescribed by law, is either a "creditor or other person interested in the estate" and therefore is one who *Page 703 may apply for the removal of an executor or administrator under the provision of the statute to the effect that "any heir, legatee, devisee, creditor, or other person interested in the estate may apply for the removal of an executor or administrator." etc. Section 19-222, O.C.L.A., Vol. 2, p. 560.
In the Murray case, the court held that it was a proceeding by the administrator de bonis non, against sureties on the bond of a former administrator for the settlement of the account of the former administrator. Emma Murray, widow of deceased, the former administrator died on October 5, 1905. F.P. Talkington was appointed administrator de bonis non and in that capacity instituted the proceeding. One Casto presented a claim in the sum of $620 for furnishing stable room, feed and care for a valuable horse belonging to decedent at the instance of the widow after the death of decedent and before the appointment of the widow as administrator. A lease of said horse had been given to Casto by Mrs. Murray, which was held to be void. Casto v. Murray, 47 Or. 57, 81 P. 388, 883. The proceeding was not at law and the validity of the claim of Casto, it being the only unpaid creditor's claim against the estate, was tried out as an incident to the accounting. The court plainly distinguished Casto's claim from that of petitioner in the instant case, by saying,
"Although Casto's remedy was upon the personal liability of the administrator and not against the estate, yet there is an exception to this general rule as in case of a claim for funeral expenses or care of live stock, or in case of the insolvency of the administrator to which might be added the removal of the administrator beyond the jurisdiction of the court [citing authorities]. And in such *Page 704 a case the creditor may be allowed to take the place of the administrator and be paid out of the estate to the same extent." Murray's Estate, supra.
The claim of petitioner in the instant case was not for care of livestock, and the Murray case was an equitable proceeding.
In In re Baker's Estate, supra, there were various petitions filed by the widower of the deceased and several orders entered by the court. The claim of the widower was based upon his right to the homestead interest and to his right of curtesy in an apartment house belonging to the estate of his deceased wife. On April 28, 1936, the widower filed a pleading entitled a petition which terminated with a prayer for a declaratory judgment. To this petition the defendants filed an answer containing denials, admissions and new matter. To this answer, petitioner filed a reply. On July 7, 1936, the court entered its decree, from which petitioner, the widower aforesaid, prosecuted an appeal. This final decree stated that the attorneys had stipulated to submit to the court upon the records and files in said probate proceedings the various applications of the widower; and that the widower, through his attorneys, agreed in open court that his curtesy rights and exempt property rights should be fixed and adjusted by the court.
The plaintiff's counsel stated that they did not enter into the stipulations above mentioned. This statement was held to be insufficient to impeach the record made by the probate judge as shown by the final decree and the findings of fact, because in support of such attempted impeachment no stenographic transcript of the proceedings were brought before this court in *Page 705 the manner required by law. In support of the decree, defendants' counsel did present such a transcript signed by the official court reporter; and the stipulations were given effect.
We are at a loss to understand how anyone could construe the opinion in the Baker case as relieving a claimant in a contested proceeding of an equitable nature from securing the services of the official court reporter, if one be present, in preserving the record on appeal.
In the instant case, at the outset of the trial, the official court reporter was present and petitioner declined to avail herself of such official reporter's services. That dissipates the thought that the statement in the Baker case as to the proper course to be taken in the event that the official reporter was not present, could have influenced the petitioner herein. Nothing whatever is said in the Baker case to the effect that the transcript of testimony need not have been made and certified by the official court reporter in any case where such reporter is present in court when the parties are entering upon the trial.
Petitioner argues that the phrase in the defendant's answer "except the sum of $150.00 as ordered by the above entitled court in its order titled `Accepting Resignation of Livy Stipp' dated November 4, 1938" brings defendant's answer under the rule that where the defendant in an action relies on a record and, in express terms, makes it a part of his answer and refers to it as a part thereof, he will not be heard, on appeal to say that the record is not a part of the answer, even if it is not set out in the answer or as an exhibit thereto.
We do not so construe defendant's answer. The phrase therein last herein above quoted is merely an *Page 706 admission that the estate owes the petitioner $150. There is no suggestion that defendant relies on any record.
In the petition, facts are alleged concerning the order of November 4, 1938, based upon the sixth and final report of Livy Stipp, as administrator, which order, it is alleged in said petition, contains the provision "that before turning the assets of this estate over to the new administrator, the said Livy Stipp should pay" to petitioner and her sister in full for services the sum of $150. From this portion of the petition, it is obvious that the phrase last quoted from the answer refers to the allegations in the petition and merely constitutes the admission of liability as above stated.
Petitioner cites the case of Sutherland v. Sutherland,102 Iowa 535, 71 N.W. 424, 63 Am. St. Rep. 477. That was a case where the widow, of deceased, sought to have her share of the real estate, of which her husband died seized, set apart to her. The heirs at law answered that her husband died testate and that in his will he devised to plaintiff the real estate described in her petition to have and to use during her natural life in lieu of her dower or statutory rights in said land. The answer contained the following statement:
"Defendants make the will, and the probated record, and all the papers, records, and proceedings in the matter of the estate of Donald Sutherland, deceased, in the district court of Jones County, Iowa, a part of this answer, and refer to same as part of this answer."
That is a specific averment making the will, et cetera, a part of the answer. There is no such averment in the instant suit. *Page 707
This court sympathizes with petitioner in her misfortune as appealingly depicted by her counsel in his oral argument, but we cannot substitute pity for legal principles or permit sympathy to sway us from the duty of applying the law as we understand it.
The decree of the trial court is modified by striking therefrom the deduction of $83 for work and produce received by said petitioner and by increasing the balance to be paid to said petitioner from $317 to $400, and, thus modified, the decree of the trial court is affirmed.
It is further ordered that the petitioner herein, Blanche J. Dedman, recover her costs and disbursements on this appeal from defendant Paul R. Biggs, as administrator, the same to be paid from the assets of the estate of H.A. Dedman, deceased.
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