Upon six points, the writer is unable to concur in the opinion of the court.
That the appeal of Carruthers from the order denying and overruling his petition to be appointed executor did not operate to stay the proceedings. The writer is of the opinion that it did.
That a special administrator could not have been appointed pending appeal.
That pending said appeal, any duty rested upon Callan other than to conserve the corpus of the estate.
That the order was valid approving the purported final account of Callan and declaring the estate *Page 370 fully administered when made upon the same day that this court rendered an opinion that Callan should not have been appointed at all, and directed the probate court to appoint Carruthers. The writer thinks that such order had and has no validity.
That the purported final account of Callan is correct.
That impliedly, at least, we should approve an arrangement whereby the E.C. Workman claim, the claim of Callan for fees and of Callan's attorneys for fees, alleged to have accrued for services in administering this estate, should be impressed upon the trusteeship.
There are five classes of appeals which, in order to stay proceedings, require a special form of undertaking in addition to one to the effect that the appellant will pay all damages, costs and disbursements which may be awarded against him on the appeal.
One of those classes of appeals is where the judgment or decree appealed from is for the recovery of money or of personal property or the value thereof. In those cases, in order to stay proceedings, the undertaking must provide that, if the judgment or decree or any part thereof be affirmed, the appellant will satisfy it so far as affirmed.
The second class requiring a special form of undertaking in order to stay proceedings is where the judgment or decree appealed from is for the recovery of the possession of real property, for a partition thereof, or the foreclosure of a lien thereon. In those appeals, the stay bond must provide that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and if such judgment or decree or any part thereof be affirmed, *Page 371 the appellant will pay the value of the use and occupation of such property, so far as affirmed, from the time of the appeal until the delivery of the possession thereof.
The third class comprises appeals from a decree requiring the transfer or delivery of any personal property unless the things required to be transferred or delivered be brought into court or placed in the custody of such officer or receiver as the court may appoint. In this third class of appeals, the stay bond must provide that the appellant will obey the decree of the appellate court.
The fourth class involves appeals from decrees for the foreclosure of a lien, and also against the person for the amount of the debt secured thereby. In those cases the stay bond must provide that the appellant will pay any portion of such decree remaining unsatisfied after the sale of the property upon which the lien is foreclosed.
The fifth class embraces appeals from decrees requiring the execution of a conveyance or other instrument where such instrument is not executed and deposited with the clerk within the time allowed to file the undertaking. In this class, the stay bond must contain a provision to the effect that the appellant will abide the decree of the appellate court: Section 7-504, Oregon Code 1930.
To the writer it is so clear, so palpable, so obvious that the former appeal of this case was not included in either of the foregoing five classes requiring a special provision in the bond to stay proceedings that nothing more should be required than mere reference to the foregoing provisions of the statute.
In the opinion of the court, however, the following clause of section 7-505, Oregon Code 1930, is offered *Page 372 as authority for holding that the appeal bond in the former appeal did not have the effect to stay proceedings:
"The court or judge thereof, in its discretion, may dispense with or limit the further undertaking required by subdivisions 1, 2, 3, 4 of section 7-504, when the appellant is an executor, administrator, trustee, or other person acting in another's right."
If the writer's construction of section 7-504, supra, is correct, there was not and there never could have been any further undertaking required of appellant in the former appeal than the one given; and, consequently, the court or judge could neither dispense with nor limit such nonexistent requirement.
To summarize the requirements pertaining to further provisions of the undertaking on appeal, as prescribed in said section 7-504, supra, we have the following:
That the appellant will satisfy the judgment or decree for money or personal property so far as affirmed. Certainly, such a requirement would have been an absurdity in the former appeal.
That during the possession of real property, pending foreclosure of a lien thereon or partition thereof, appellant will not commit or suffer to be committed any waste thereon and will pay the value of the use and occupation of such property. Such a provision would have been equally ridiculous.
That the appellant will obey the decree of the appellate court. If the former appeal had resulted in an opinion adverse to appellant, there could have been and would have been nothing for appellant to obey. No duty was enjoined upon him by the order from which he appealed. That order simply said in effect that he *Page 373 should not become executor of the last will and testament of Harper Workman, deceased. So, with reference to this (the third class of appeals), nothing is shown affecting the former appeal and nothing appears which could be dispensed with or limited.
That the appellant will pay any portion of such decree remaining unsatisfied after the sale of the property upon which the lien is foreclosed. No lien was involved in the former appeal, no foreclosure was ordered, no decree for the payment of anything was made; and, hence, it would have been incongruous and improper to attempt to apply such a requirement to the former appeal or place any duty upon appellant to have the same dispensed with or limited.
To make any application whatever to the former appeal of the statutory provision affecting an appeal from a decree requiring the execution of a conveyance or other instrument is in the writer's view equally unwarranted.
Besides, the appellant in the former appeal was not an executor, administrator, trustee or other person acting in another's right. He was an individual acting solely for himself in an effort to become an executor. In a comparatively recent case the supreme court of Utah had occasion to pass upon the character of such a contest. The writer quotes therefrom:
"The expenses of the contest had between Mrs. Pingree and the Ogden State Bank, as to who should be appointed to administer the estate are not proper charges against the estate. That contestwas of a private character in which the estate had no interest, except that some competent person be appointed." (Italics supplied.) In re Pingree's Est. 82 Utah 437 (25 P.2d 937, 90 A.L.R. 96). *Page 374
The following authorities are cited in the opinion of the court in support of the proposition that Carruthers' appeal bond did not have the effect to stay proceedings: Helms, Groover DubberCo. v. Copenhagen, 93 Or. 410 (177 P. 935); Livesley v. KrebsHop Co., 57 Or. 352 (97 P. 718, 107 P. 460, 112 P. 1); 3 Am.Jur. App. Error, p. 196, § 538; Spring v. South Carolina Ins.Co., 6 Wheat. 518 (5 L. Ed. 320). As the writer understands these authorities, they recognize the inherent right of an appellate court in the absence of a statute to issue an order of supersedeas to preserve the status quo or to direct such a proceeding as best conduces to the preservation thereof pending review. The writer thinks that by analogy of reasoning, these authorities would justify an appointment of a special administrator or an administrator pendente lite in the case at bar if there were no statutory authority therefor.
In re Levy's Estate, 125 Wash. 240 (215 P. 811), cited in the opinion, merely holds that where the order appointing an administrator, from which an appeal was taken, was not superseded, the administrator could proceed with the administration.
The case of Dutcher v. Culver, 23 Minn. 415, cited in the opinion of the court, was originally brought by Eliza A. Dutcher, as administratrix of the estate of Gilbert Dutcher, deceased. After the commencement of the action, the probate court entered an order removing her from administration. She appealed. While the appeal was pending, the probate court entered an order appointing R.J. Martin, administrator de bonis non. An appeal was taken from that order.
It was held by the supreme court that the appeals mentioned did not stay the proceedings, and hence Martin *Page 375 was entitled to be substituted as plaintiff in the case. The writer quotes from the opinion in the Minnesota case:
"To such appeal the statute does not make it necessary for the appellant to indemnify against the injurious consequences of taking it."
In Oregon, in such a case as the Dutcher-Culver case. the statute requires indemnification either by delivery of the property in court or by appropriate provision in the bond: Section 7-504, supra.
The distinction between the case at bar and the Minnesota case of Dutcher v. Culver, is that in the Minnesota case the appellant was in possession of the corpus of the estate and gave no indemnity against possible loss by her failure properly to account therefor and make delivery thereof if the order of removal should be affirmed. In the case at bar, at the time of the former appeal, Carruthers had no property whatever belonging to the estate and no other provision is made whereby he could have secured a stay of proceedings, except the provision contained in the final sentence of section 7-505, Oregon Code 1930.
It is evident from the opinion in the Dutcher-Culver case that Minnesota had no such statute.
The rule in Minnesota seems to be that whether an appeal operates as a stay of proceedings depends upon whether the court thinks the consequences of giving the appeal that effect, or the contrary effect, will be good or bad.
In the Dutcher-Culver case, supra, the appeal was held to stay proceedings. In a much later case, involving an appeal by several common school districts from an order of the county superintendent of schools granting *Page 376 a petition for the consolidation of said common school districts with certain joint districts, the Minnesota court held that an appeal had the effect of staying proceedings. The writer quotes from that opinion:
"In Dutcher v. Culver, 23 Minn. 415, there was an appeal to the district court from an order of the probate court, and it was held that it did not stay the operation of the order. It was remarked that, where the statute provides that a party may appeal no certain inference can be drawn from the term `appeal' alone as to its effect on the proceedings below and that, in determining what that effect is the general policy of the law may be looked to, as well as the practical consequences of giving the appeal the effect to stay proceedings or the contrary effect.
* * * * * The statute makes no provision for a stay, but the practical consequences of holding that the appeal does not operate as a stay would be unfortunate.
For reasons of public policy and to preserve the rights of the parties to such proceedings in statu quo until they have been finally determined, we hold that an appeal from an order consolidating school districts suspends the operation of the order while the appeal is pending." School District No. 30 v.Consolidated School District No. 30, 151 Minn. 52 (185 N.W. 961).
The writer is of the opinion that in Oregon the statute is controlling which unambiguously and directly declares that in cases not within the terms of any of the four subdivisions of section 7-504, supra, the perfection of an appeal has the effect to stay proceedings.
Hughes v. Hodges, 94 N.C. 56, cited in the opinion, is an action for the foreclosure of a mortgage. The substituted plaintiff was the executor of the will and estate of the mortgagee. A caveat was entered attacking the execution and validity of said will. Among other *Page 377 issues, it was first contended that the executor could not become a party plaintiff and prosecute the action pending the controversy raised by the caveat. The writer quotes from the opinion in that case:
"The answer to the first ground of objection * * * is furnished in the statute, which declares that:
"When a caveat is entered and bond given as directed in the two preceding sections, the Clerk of the Superior Court shall forthwith issue an order to any personal representative having the estate in charge, to suspend all further proceedings in relation to the estate, except the preservation of the propertyand the collection of debts, until a decision of the issue ishad. The Code, § 2160.
"This provision is manifestly intended, in cases to which it is applicable, to dispense with the necessity of appointing an administrator pendente lite, and confers very similar forms upon the executor, and more especially when he has entered upon the duties of his office before the caveat is entered. Syme v. Broughton, 86 N.C. 153.
"The prosecution of the action in order to the collection of the debts, is evidently sanctioned by the statute and in furtherance of the purpose of its enactment." Hughes v. Hodges, supra.
Oregon has no such statute.
This question, that is, whether the provisions of section 7-504, supra, were or are applicable to the former appeal, has been decided in California.
The supreme court of that state, speaking through Mr. Justice McFarland, say:
"There was a contest in the court below between C.M. West and George Bronner, as public administrator, for letters of administration of this estate, which was decided in favor of the latter. West appealed from the order appointing Bronner administrator, giving *Page 378 an undertaking on appeal in the sum of $300, as provided for in section 941 of the Code of Civil Procedure; but Bronner is proceeding to administer the estate, and the matter now before us is an application by West for an order staying all proceedings until the determination of the appeal. The undertaking provided for by section 941 `stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein,' except in those cases specified in section 942-945, and a few special matters mentioned in section 949, not material here. * * * But appellant here is not within the said sections from 942 to 945, which `apply to appellants who are required to perform the directions of the judgment or order appealed from.' Estate of Schedel, 69 Cal. 241, 10 P. Rep. 334.
* * * * * "If, as suggested by respondent, there be any danger of loss to the estate from a stay of proceedings, such danger can be avoided by the appointment of a special administrator under section 1411." In re Wood's Estate, 94 Cal. 567 (29 P. 1108).
Sections 942-945, Code of Civil Procedure of California, in effect when the case last cited was decided, were very similar to section 7-504, Oregon Code 1930.
An appeal bond has the effect to stay proceedings in a case not within the statutory exceptions: Section 7-505, Oregon 1930; Inre Vinton, 65 Or. 422 (132 P. 1165); Bestel v. Bestel, 153 Or. 100 (44 P.2d 1078); City of Los Angeles v. Pomeroy, 132 Cal. 340 (64 P. 477); Root, Neilson Co. v. Bryant, 54 Cal. 182;Rohrbacker v. Superior Court, 144 Cal. 631 (78 P. 22); In reStough's Estate, 173 Cal. 638 (161 P. 1); O'Donnell v. SixthJudicial District Court, 40 Nev. 428 (165 P. 759).
In this connection it must be borne in mind that in Oregon it is unnecessary to apply for or procure an order staying proceedings. Perfecting an appeal, ipso *Page 379 facto, has that effect: In re Vinton, supra; Bestel v.Bestel, supra.
The opinion of the court declares that because the language of the statute authorizing the appointment of a special administrator is that "when for any reason there shall be delay in issuing letters testamentary or of administration," the court could not have appointed a special administrator after it had already issued letters to Callan. In the opinion of the writer this is an unreasonably restricted and unjustifiably narrow construction of the statute.
In the opinion of the writer, the proceedings in the special administration are separate and distinct from the general administration and the construction, which should be given to the statute above quoted is that, if for any reason there shall be delay in effectively issuing letters testamentary or of administration, a special administrator may be appointed.
It is said in the opinion of the court that the cases, In reCavanaugh's Will, 72 Misc. Rep. 584 (131 N.Y.S. 982), and In reLeland's Will, 175 A.D. 58 (161 N.Y.S. 320), do not support the contention that a special administrator may be appointed pending an appeal.
The difference between the New York statute and section 11-214, Oregon Code 1930, renders the Leland case peculiarly and aptly in point here. The New York statute provides, among other things, as follows:
"On the application of a creditor, or a person interested in the estate, the surrogate may, in his discretion, issue to one or more persons letters of temporary administration, in either of the following cases: 1. When for any cause, delay necessarily occurs in the granting of letters testamentary or letters of administration, or in probating a will * * *" Section 2596, N Y Code of Civil Procedure. *Page 380
As stated, the language of the Oregon statute is: "When for any reason there shall be delay in issuing letters testamentary or of administration."
The writer quotes from the opinion in the Leland case, supra:
"It is contended by the learned counsel for the respondent that said section 2596 has no application, for the reason that there was no delay in granting letters testamentary. They argue that the letters were granted by the decree of July 12, 1916, although the issuance thereof was stayed by the appeals therefrom. That would be a narrow and unreasonable construction of the provisions of the Code. Here delay necessarily occurred in granting the letters, which as used in said section 2596, means the issuing of the letters. The administration of the estate is not aided by the mere fact that a decree has been made authorizing the issuance of letters, if the issuance of the letter is stayed. * * * We are of the opinion that the surrogate * * * should have appointed a temporary administrator pursuant to the provisions of said section 2596 of the Code of Civil Procedure."
In re Cavanaugh's Will, supra, on the 19th day of February, 1907, letters testamentary were issued to Annie B. Cavanaugh, the sole executrix named in a purported will dated February 15, 1906. On January 23, 1911, the supreme court entered a judgment that said purported will was invalid. On the 29th day of January, 1911, another will was filed for probate, the same being dated September 23, 1904.
An appeal was taken from the judgment of the supreme court declaring the probate to be invalid and the alleged will to be null and void. The writer quotes from the opinion:
"If an appeal from the judgment of the Supreme Court has been perfected and a prior will is offered for probate or letters of administration are applied *Page 381 for, he [the surrogate] should suspend proceedings in either of such cases until the final determination of the Supreme Court action then upon appeal; and, in the meantime, upon a proper application being made, he should appoint a temporary administrator of the estate to whom the former executor may account in a proper proceeding and to whom the estate may be turned over for management and preservation. Upon a final determination of the action in the Supreme Court, the surrogate will then be in a position to issue new letters testamentary to the executor named in the will, if such will be finally sustained; or, in event that it be not sustained, to take the probate of another will, or to grant letters of administration, as the case may require, freed from the embarrassments and entanglements which might arise if in the first instance he admitted another will to probate or granted general letters of administration." In re Cavanaugh's Will, 72 Misc. Rep. 584 (131 N YS. 982).
It will be noted that in the first New York case [In reLeland's Will] notwithstanding that there had been no delay ingranting letters testamentary, and that the statutory provisions that, "when for any cause delay necessarily occurs in the granting of letters testamentary," etc., letters of temporary administration might issue, the court held that letters of temporary administration should issue.
In the case at bar, the statute of Oregon employs the word "issuing" instead of the word "granting". The doctrine upheld by this New York case commends itself to the writer and to him it seems to be directly in point in refusing to apply "a narrow and unreasonable" construction of the provisions of the code. Certainly, if "granting letters testamentary" includes "issuing" them, then, "issuing" them must mean issuing them effectively. *Page 382
The New York case said:
"The administration of the estate is not aided by the mere fact that a decree has been made authorizing the issuance of letters if the issuance of the letters has been stayed."
With equal propriety, it may well be said that the administration of the estate in suit was not aided by the mere issuance of letters testamentary if further proceedings thereunder were stayed.
It is suggested that if an appeal from an order denying letters testamentary to a person named as executor stays proceedings, then an appeal from an order appointing a special administrator would have the same effect and no relief could be had by appointing an administrator. The fallacy of this argument lies in the fact that an order appointing a special or temporary administrator is not a final order and no appeal lies therefrom:Pratt v. Kitterell, 15 N.C. 168.
The Cavanaugh case is in point in that it clearly outlines the proper procedure in cases such as the one at bar and discloses the advantages to be gained thereby.
Being convinced that an order could well have been made appointing a special administrator, the writer believes that only the duties of a special administrator, if any, devolved upon Mr. Callan. Being also convinced that Mr. Carruthers' appeal stayed proceedings, the writer thinks that no action taken by Mr. Callan, other than that which a special administrator would have been authorized to take, should be approved.
The writer is mystified with respect to the effect ascribed by the opinion of the court to its former opinion. Here we are considering an order finally closing an estate upon the report of an unauthorized administrator. *Page 383 At least, upon the same day that the probate court made an order, which, when made, the writer understood to be one in which it was held that Mr. Callan had no authority as administrator and in which it was expressly directed that Mr. Carruthers should be appointed executor. The present opinion holds that, with the exception of a matter unworthy of notice, the order of final settlement must be approved, although unauthorized and based upon the support of a mere de facto administrator, whose purported official standing was disavowed by the former opinion. In the view of the writer, the probate court backs the supreme court up against the fence and makes this court of last resort eat its words and rejoice in the feast thus provided. The writer refuses to eat such a repast or rejoice because the majority seem to enjoy it.
To the writer, the plea that the accounts of Callan are correct is a pitiable excuse for facing about and in effect saying now, directly contrary to what was said in the former opinion, that it was not at all necessary for Mr. Carruthers to be appointed as executor; that the testator's wishes in that regard are of no concern to us and that it is better for us to consider our former opinion unsaid. Let a waiting world know that the writer of this dissent did not write the former opinion. It was written by no less distinguished, experienced and learned jurist than our present chief justice. Further than that, the writer thinks that such an account, as Mr. Callan's, if offered by one regularly and legally authorized to make it, should not be approved. The account discloses that a claim, that of E.C. Workman, has been allowed, but it nowhere shows that it has been paid. The writer thinks that the estate cannot be finally closed until all claims, which have been allowed, have been paid *Page 384 and vouchers showing such payment have been filed. The writer also thinks that the fees of the administrator and of his attorneys should be paid in the course of the administration before an order of final settlement should be entered.
Upon reargument, the attorney for Mr. Callan did not equivocate. He said: "The administrator has not been paid; attorneys' fees have not been paid, but they are looking entirely to the trusteeship expecting some day that they will be."
In referring to the E.C. Workman claim, Mr. Callan's attorney said: "That claim has not been paid, however, the claim has not been withdrawn. The claimant is looking to the residuary beneficiaries under the will and the trustee should take care of it."
In the face of this candid statement made in open court before a full bench, when we approve a purported final account of an unauthorized administrator conditioned upon such an unwarranted arrangement with respect to a trusteeship now pending, are we not inviting another delectable (?) repast, when, as is entirely possible, we may say probable, an appeal in this or some other trusteeship should reach us involving the propriety of impressing the expenses of administration and the payment of a claim against the estate in probate upon the corpus of such trust?
No good purpose can be served by an extended discussion of the question whether Callan's acts as administrator were void or merely voidable. If the proceedings were stayed, the writer is unable to conceive how his attempt at further proceedings would have any validity. Certainly, such a course, in violation of an express statutory provision prohibiting it, would not operate to destroy the right of the regularly appointed *Page 385 executor to require an accounting at Callan's hands. The writer thinks that only such order, if any, of the probate court subsequent to the perfection of the former appeal as may have been in aid of such appeal, were valid or enforceable.
In the writer's view, the attempt to impress upon the trusteeship the payment of administrators' fees, attorneys' fees for services performed in the administration of the estate, and the payment of at least one claim, the justness of which Mr. Carruthers challenges, should not have the sanction of this court. The writer thinks that those matters should be determined before the closing of the administration.
The writer is unwilling to give effect to an order of the probate department of the circuit court made upon the same day an opinion of the supreme court is announced diametrically opposite to the terms of such order.
In the opinion of the writer, if in such a case, as the one at bar, the condition of the estate requires administrative attention to conserve it, the proper course to pursue is to appoint a special administrator: Section 11-214, Oregon Code 1930; In re Cavanaugh's Will, supra; In re Leland's Will, supra. The writer thinks that the authority thus given to appoint a special administrator negatives the suggestion that the estate would have suffered for want of administrative attention if Mr. Callan had not administered it.
With due respect to his learned associate, who wrote the opinion, and to the other eminent jurists, who concur therein, the writer dissents.
BEAN, C.J., and CAMPBELL, J., concur in the foregoing dissent. *Page 386