Petition for rehearing denied May 11, 1937 ON PETITION FOR REHEARING (68 P.2d 479) H.J. Carruthers, the executor-appellant, has filed a petition for a rehearing in which he insists that our entire decision was in error. The petition is accompanied with a brief. In behalf of his contention that the cost bond acted as a supersedeas, he cites: Bestel v. Bestel, 153 Or. 100 (44 P.2d 1078,53 P.2d 525); State ex rel. Huber v. Tazwell, 132 Or. 122 (283 P. 745); In re Vinton, 65 Or. 422 (132 P. 1165); Anderson v.Phegley, 54 Or. 102 (102 P. 603); Stewart v. Saratoga andWhitehall Railroad Co., 12 Howard's Prac. Rep. 435; Hibbard v.Burwell, 11 Howard's Prac. Rep. 572; The Trustees of theVillage of Penn Yan v. Forbes, 8 Howard's Prac. Rep. 285; Meadv. Jenkins, 4 Demarest's Rep. 84; Thompson v. Blanchard, 2 Comstock's Rep. 561; Vreedenburgh v. Calf, 9 Paige's Chancery Rep. 128; Ross, Probate Law and Practice, § 243 a; Bancroft's Probate Practice, p. 171; 4 C.J., pp. 1204-1209; Golde ClothesShop Inc. v. Loew's Buffalo Theatres, Inc., 236 N.Y. 465 (141 N.E. 917, 30 A.L.R. 931); 4 Wait's New York Prac. 2d § 1134.
The first six of the above decisions, according to the appellant, construe a former New York statute concerning appeals (Vorhies' New York Code of Procedure, 3rd edition, §§ 333 to 343) which the appellant believes was the parent of our statute.
We examined the New York statute, the Corpus Juris section, the above-cited Oregon decisions (with the exception of Anderson v.Phegley, supra,) and some of the New York decisions before we wrote our previous decision. We have again examined these authorities, together with the others which the appellant cites, but *Page 387 remain satisfied that the appellant's cost bond did not operate as a supersedeas.
The appellant argues that since he is now the executor of the decedent's estate, he is entitled to an accounting from the respondent, A.C. Callan, who, as stated in our previous decision, was erroneously appointed administrator with will annexed. The appellant seems to believe that our decision denied him the right to an accounting. For instance, he states: "In effect he holds that Callan's appointment was with authority, and refuses the executor an accounting and every other remedy and authority he is given by statute. It might well be pointed out here that one of the points raised by this appeal is the refusal of the probate court to allow an accounting. If it is now conceded that appellant is executor and possesses authority to audit Callan's account, why should the supreme court deny the executor's appeal for such remedy when the probate court and Callan have refused it and the appellant seeks the right through this appeal?" By reverting to the prayer concluding appellant's petition, reviewed in our former decision, it will be observed that the appellant did not pray for an accounting by Callan. It is true that he alleged he had made "written demands upon A.C. Callan, Trustee," for an accounting, but the plaintiff has no interest in the trust estate and, hence, is not entitled to an accounting by Callan, Trustee. Moreover, no one has sworn that the accounts filed by Callan are not correct. The appellant's right to an accounting, if he wished one, has not been questioned during the course of this appeal, and our decision stated: "The respondents, who are Callan and two of the beneficiaries of the will, concede that the appellant is now executor and admit that he possesses authority to audit Callan's accounts *Page 388 and complete anything that Callan may have left unfinished." The decision nowhere denied that the appellant was entitled to an accounting, and, since no one questioned his right to one, we made no further reference to the subject other than the language just quoted. In fact, as stated in our previous decision, Callan filed accountings and accompanied them with vouchers, receipts, cancelled checks, claims filed and other supporting data. These statements of account received extensive attention in the petition which instituted the present controversy. As stated in our previous decision, the appellant's criticism of them, upon review by this court, revealed no irregularity whatever.
The appellant seems to believe that since he is now executor he is entitled to engage in any course of conduct his sense of duty suggests, and that he ought to be entitled to expend the estate's resources in defraying the expenses attendant upon such ventures. Such being his beliefs, he again insists that the eleven subdivisions of the prayer which conclude his petition ought to be allowed. He argues that "the statutes" confer upon him power to pursue his contemplated course. He, however, cites none. If any statutes confer such broad power and do not subject it to judicial supervision, then it was wholly unnecessary for the appellant to have filed the petition which instituted this controversy. By filing it he conceded that the authority which he seeks could be withheld if the probate judge believed that it should not be granted. Section 11-223, Oregon Code 1930, referring to the probate judge, provides:
"It is the duty of the court or judge thereof to exercise a supervisory control over an executor or administrator, to the end that he faithfully and diligently perform the duties of his trust according to law." *Page 389
In In re Marks' Estate, 81 Or. 632 (160 P. 540), there was re-echoed the statement found frequently in the Oregon decisions:
"In the very nature of things, County Courts are vested with a very large discretionary power over the conduct of executors and administrators."
Thus, it is evident that while the executor or administrator stands in the shoes of the deceased and is charged with the duty of terminating the undertakings of his decedent, he does not possess all of the rights and powers that the deceased enjoyed. He is merely the representative of the latter, and is, therefore, a fiduciary. He cannot serve himself as the deceased had done, but is the trustee for the creditors and beneficiaries. To these two groups he owes a duty and it is incumbent upon the probate judge to see to it that he performs that duty. Besides seeing to it that the estate's representative discharges his duties faithfully and diligently, he owes a duty to preserve the estate from loss, if possible. To enable the probate judge to accomplish these objectives, the law grants him supervisory control, or, as it is sometimes called, superintending control, over the acts and conduct of all persons handling estates of decedents. The extent to which the probate judge should direct the conduct of the estate's representative is, of course, dependent upon the circumstances. If the question concerns the construction of the will or the disposition of the estate after all debts have been paid, the judge's duty is clear and he must give directions, upon petition. In all cases where reasonable men could entertain doubt as to the duty of the representative or where questions of policy arise affecting the security of the estate, the judgment of the probate judge should be consulted before the *Page 390 representative proceeds. But if the question merely concerns a matter of business judgment and does not involve any condition which makes it unsafe for the representative to go ahead, the judge may properly decline to give advice. And, of course, the probate judge will not take the place of counsel and undertake to become the legal adviser of those interested in the estate. FromIn re Wilson's Estate, 85 Or. 604 (167 P. 580), we quote:
"In the administration of an estate, of which the County Court has exclusive jurisdiction in the first instance, it is necessary for that court to direct the executors how to proceed, to whom the property in their hands shall be given, and what each shall receive. It has full power and jurisdiction to respond to such a petition by an appropriate decree. That is one of its functions and duties."
The following is taken from Bancroft's Probate Practice, § 336:
"An administrator, duly appointed, is thus an officer of the court, subject to its orders, answerable to the court in contempt proceedings or liable to removal from office for refusal to obey the order of the court, and is entitled to the protection of the court in carrying out its orders. Except under the nonintervention will statutes existing in a few states, the policy of the law is that the court have supervisory control of all the acts and transactions of either an executor or an administrator. Indeed probate courts are vested with very extensive discretionary power over the conduct of these officers, and exercise of such discretion will not be interfered with on appeal unless plainly required by some principle of law. An executor or administrator thus holds the estate substantially as a stakeholder, for delivery in accordance with the court's order of distribution. The probate court or judge is the actual guardian of the estate, and all proceedings are under its direction. *Page 391 The executor or administrator derives his power from the order of the court issuing his letters, and acts simply under its control."
From the above it will be observed that the representative is at all times subject to the superintending power of the probate judge. The appellant, while citing none, repeatedly refers to "the statutes" and seems to believe that there are laws which confer power free from judicial scrutiny. Of course, the probate judge, in exercising his supervisory power cannot deny to an executor anything which a statute grants, but we know of no statute which directs an executor to pay claims which have not been presented; nor do we know of any which directs an executor, over the objections of the beneficiaries, to employ the estate's funds in maintaining litigation. The brief contains intimations of secret directions by the deceased for the institution of litigation and a statement which seeks to impugn the motives of the family. Neither statement is justified by the record, and by the latter we are bound. Many a man has gone through life maintaining peace with his fellow men and without once having his name entered upon a court record, and yet after his death his name is repeatedly entered upon court journals and becomes a symbol of litigation. Ordinarily, it is an ungrateful relative who is responsible, but here is an executor who, over the positive and united remonstrances of the family, proposes to inject the deceased's name into litigation, not only in Oregon but also in Alaska. Since the members of the family are the only persons interested in the estate, their wishes ought to control.
In his brief the appellant, referring to our decisions, asks, "In what condition does this leave the valuable *Page 392 mining property in Alaska?" As stated in our previous decision, the Alaska property, if the deceased possessed any, was not inventoried by Callan, and nothing whatever has been done concerning it. It is now available to the appellant, if it exists.
As will be observed from the foregoing section of Bancroft's Code Practice, appellate courts do not interfere with the exercise of the probate judge's discretion unless the circumstances show that it was exercised in an unsound manner. All of the heirs of the deceased and the beneficiaries of his will have approved the order from which this appeal is prosecuted. Under the circumstances, that ought to be sufficient justification for the order.
For the foregoing reasons the petition for a rehearing is denied.