[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 17
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 18 Plaintiff and William H. Shepherd intermarried on February 9, 1922. Mr. Shepherd died testate on November 5, 1923, without issue. At the time of his death he owned real property consisting of a ranch near Albany, Linn county, Oregon, valued at $13,505, and an interest in some lots in Albany, which were later valued at $250, and personal property consisting of cash, notes and securities of the appraised valuation of $6,871.40.
The will read as follows:
"I, W.H. Shepherd, being of the age of 67 years and of sound and disposing mind, memory and understanding and not acting under duress, fraud or the influence of any person whomsoever, do make, publish and declare this to be my Last Will and Testament, hereby revoking any and all former wills by me made;
First — I direct that all my debts and expenses of my funeral and last illness be paid as soon as possible out of my personal estate;
Second — I have heretofore executed and delivered in escrow for my nephew, William D. Allingham, three deeds covering all my ranch and farming property located in Linn County, Oregon, it being my intention, which I hereby reiterate, that said real property shall go to my said nephew, William D. Allingham, upon my death; and if said deeds are for any reason ineffective to carry out this intention, I hereby will and devise all of said real property to my said nephew, William D. Allingham;
Third — Subject to the foregoing, I give, will, devise and bequeath to my nephew, William D. Allingham, all of the rest, residue and remainder of my estate, real personal and mixed, wheresoever situated of whatsoever *Page 20 kind or nature of which I may die seized or possessed or in which I may have any interest, legal or equitable, at the time of my death, in trust, however, for the uses and purposes and with the powers hereinafter set forth, with full power to receive, from my executor hereinafter named the same in such securities as it shall be invested in at the time of my death, or by my executor, with full power to sell the same or any part thereof and invest or reinvest the same or any part thereof and to change and vary the investment from time to time as he may deem best. From said trust estate and the income thereof, the said trustee shall pay to my wife, Olive M. Shepherd, the sum of Four Hundred ($400.00) Dollars each six (6) months for the balance of her natural life, unless this trust estate shall be sooner exhausted; and provided, further, that if the said Olive M. Shepherd shall remarry after my death, then the payments herein provided to be made to her shall thereupon immediately cease. The said payments are to be taken by my wife in lieu of her dower interest in any real estate of which I may die seized;
Fourth — If any of said trust estate shall remain after the death of my wife, Olive M. Shepherd, or after her re-marriage, in case she should remarry after my death, and the aims and purposes of the aforesaid trust shall have been fulfilled and completed, then any such balance or remainder of said estate, together with the income thereof, shall be paid to my nephew, William D. Allingham;
Fifth — I hereby nominate and appoint my nephew, William D. Allingham, as executor of this my Last Will and Testament, and I hereby especially direct that no bond or undertaking be required of him by any court or judge in order that he may be entitled to act as such executor or as trustee aforesaid."
The will was properly executed in the presence of two witnesses.
On November 10, 1923, a petition for the probate of the will was duly filed and on November 13, 1923, the probate department of the circuit court for Multnomah *Page 21 county admitted the will to probate and issued letters testamentary to William D. Allingham, defendant herein, who thereupon qualified as executor. On February 6, 1924, Olive M. Shepherd filed her petition for widow's allowance in the sum of $300 per month. On March 19, 1924, the said court allowed Mrs. Shepherd the sum of $225 per month for support and maintenance for the period of one year from the date of the filing of the inventory. The order also provided that the support money should be in addition to the amount set forth in the will of deceased for the benefit of the widow, or in addition to the dower rights of the widow provided she elected to take the dower and not take under the will. The widow failed to elect to assert her dower right in lieu of the provision under the will.
After one year's allowance had been paid, the widow, Olive M. Shepherd, filed a suit contesting the will, asking that the same be set aside and she be declared the sole heir at law. The complaint alleged undue influence, mental incapacity and various other grounds. The will was thereupon probated in solemn form. From a decree declaring the will to be valid, the plaintiff appealed to this court where the decree of the lower court was affirmed. (In re Will of Shepherd, 121 Or. 619 (256 P. 1119)).
Immediately thereafter, the widow, Olive M. Shepherd, filed a suit against said Allingham alleging that she and the deceased had entered into an oral anti-nuptial agreement to the effect that if he would not make a will and if, at his death, plaintiff should survive him, and become his sole heir at law, she would marry him and nurse and provide for him; that she relied on said proposal and accepted same and married him, and fully performed her part of the contract. From an *Page 22 adverse decision of the lower court, plaintiff appealed to this court where the decree was affirmed. (Shepherd v. Allingham,132 Or. 684 (288 P. 210)).
On December 4, 1930, Allingham as executor filed his final account. On December 29, 1930, Mrs. Shepherd filed various objections thereto. She objected to several items among which were Item No. 12, the amount paid the court reporter in In reWill of Shepherd, supra, the will contest, $435.75, for a transcript of testimony; Item No. 14, $250 attorney's fees to Henry Bauer as attorney for the executor; Items Nos. 17 and 23, $350 and $1,150 attorney's fees in the will contest suit, alleging that $750 would be reasonable and sufficient; Item No. 27, $519.88 for fees of the executor; and Item No. 28, $250 additional attorneys' fees. These were the only objections that respondent raised to said final account at that time. These were the issues on her part to be determined by the court.
As a result of these objections being filed, a hearing was had January 8, 1932, at which hearing Mrs. Shepherd amended her objections to the final account by adding a paragraph objecting to the payment of the sum of $2,700, previously paid to her as widow's allowance, out of the personalty of the estate and sought to have the payment of that sum made a charge on the real property of the estate.
On January 15, 1932, Allingham as an individual, filed his objection to the court's allowance of $2,700 for the widow's support on the ground that the same was excessive, alleging that no sum "in excess of $800" should have been allowed for her support. He further contended that no part of any sum paid to the widow as allowance should come out of the real estate.
On February 1, 1932, a further hearing was had on said final account. *Page 23
On December 31, 1932, a decree was rendered settling the final account; reducing the amount theretofore allowed the widow for one year from $225 per month to $75 per month; that the sums paid to the widow in excess of $75 per month for said period of one year should be considered as part of her annuity under the will; that all the widow's objections to the final account be overruled; that the administration was completed and directed that as soon as certain of the probate proceedings be placed of record in Linn county the estate be closed and the executor discharged. This order having been complied with, on January 19, 1933, the court made an order closing the estate.
On June 6, 1932, the widow married a Mr. Bose and on January 27, 1933, as Mrs. Bose, filed a motion to vacate the decree of December 31, 1932. On November 28, 1933, the court made the following order:
"The motion of the widow of the deceased, Olive M. Shepherd, now Olive M. Bose, for the vacation of the order made by this court approving the final account of the executor and purporting to reduce the widow's allowance for support made and entered by the court on December 31, 1932, came on for hearing on this 24th of March, 1933, * * *
"And it appearing to the court that this court made an order on the 19th day of March, 1924, granting the widow an allowance of $225.00 per month for one year, and that no appeal was taken from said order, and that the final account of the executor shows that in pursuance of said order he paid the widow the sum of $2,700, and that no notice of any motion to modify the said order fixing the widow's allowance was ever given to or served upon the widow, Olive M. Shepherd, and no hearing was ever had upon any such motion, and it further appearing that the court inadvertently signed an order overruling the objections to the final account of the executor which purports to reduce the widow's allowance long since paid by the executor from $225.00 *Page 24 to $75.00, and the court being of the opinion that the order of the court reducing said widow's allowance from $225.00 to $75.00 was made without jurisdiction of the person of the widow, or the subject matter of the widow's allowance, and it further appearing that the approval of the executor's final report shows the widow was paid $2,700.00 by the executor, and that the executor is given credit for said sum as paid to the widow, and a reduction to $75.00 per month at this time would be repugnant to the credit given the executor for $225.00 per month as taken by him in his final account; and it further appearing to the court from the will, inventory, and the final account, and the admissions of the attorneys for the executor, that William H. Shepherd, deceased, by his will bequeathed to William D. Allingham (also named as executor) as trustee of all of his estate except two farms in Linn County, Oregon, to secure the payment of an annuity of $800.00 per year to his widow, Olive M. Shepherd, in lieu of her dower in the lands of which he died seized, until she should marry and while she lived, subject only to expenses of last illness and funeral expenses, which amounts to $574.00.
And it further appearing from the inventory filed by the executor, that he received as assets of the estate other than the farms in Linn County, Oregon, of the appraised value of $7,121.40, of which $6,871.40 was the value of personal property and $25.00 was the appraised value of one-half interest in Albany lots; and it further appearing from Exhibit "A" in the final report of the executor that he has disposed of personal property devised to him as trustee for which he received the sum of $6,309.12, and that the executor has used the said moneys so received by him from the property devised in trust, except the Albany lots, for the payment of taxes, expenses of administration, and attorney's fees in the sum of $5,735.12, and that the use of the property devised in trust for that purpose was wrongful and unlawful, and whereas the court in making the order of December 31, 1932, inadvertently approved the use of the moneys realized from the property devised to William D. Allingham as trustee, which the court was *Page 25 without authority or jurisdiction to make concerning any of the property devised in trust, and whereas the executor has failed by his report to show that he has made any distribution of the property devised in trust to himself as trustee.
It is hereby ORDERED that the order entered at Page ___ Volume ___ of the Journal of this court, made December 31, 1932, approving the executor's final account and discharging him from his trust, be and the same is hereby vacated and set aside, and the executor is hereby directed to file a further final account showing what property he received as executor that was and should be distributed to William D. Allingham as trustee under the will of William H. Shepherd."
From this order defendant appeals.
The contention of appellant is that the court had no power to set aside its order of December 31, 1932, for the reason that the term of the court at which it was made ended on that date. In the instant case, the court still retained jurisdiction over the parties and the subject matter. The executor was not discharged by said order. It required of him the performance of certain other duties before he should be relieved of his trust. The order finally closing the estate was not made until January 19, 1933, being the January term of said court. The motion to vacate the order settling the final account and opening up the estate for further consideration was made in the same term, on January 27, 1933. The court had authority to take such motion under consideration and pass upon the same at such time thereafter as the court should be fully advised upon the matter. While the probate court retains jurisdiction over the subject matter it has full power, on due notice to the parties, to make such orders as are necessary to the proper administration of the estate or the carrying out of the terms of the will of the testator. The circuit court *Page 26 of Multnomah county in probate matters sits as a court of equity. The provisions of the statutes relative to new trials and motions to set aside judgments, etc., do not apply to courts of equity: Oregon Code 1930, § 6-107; Mannix v. Harju, 125 Or. 258 (266 P. 238); Lachele v. Oregon Realty Exchange Investment Company,121 Or. 582 (256 P. 646); In re Seidel's Estate, 64 Or. 321 (130 P. 53). The court committed no error in vacating its said order.
However the court, in making its said order, made certain recitals on issues which were not raised either by the motion or by objections to the final account. It will be observed that the order reads:
"It is hereby ordered that the order * * * made December 31, 1932, * * * be and the same is hereby vacated and set aside, and the executor is hereby directed to file a further final account showing what property he received as executor that was and should be distributed to William D. Allingham as trustee under the will of William H. Shepherd."
We deem it advisable, in view of the recitals in said order of vacation, to state that there is no issue raised that the final account does not state the facts as to the receipts and disbursements of the trust fund under the will, and the only questions to be determined are those raised by the objections filed thereto as to whether such items are or were proper expenditures from said fund under the will.
The first objection is to the Item No. 12 in the sum of $435.75 for a transcript of the evidence in the cause of In reWill of Shepherd, supra. There is no complaint that it is too large or that it has not been paid, and, as the respondent instituted the contest, the claim should be paid out of the trust fund and the item allowed as a proper expenditure by the executor. *Page 27
Respondent then objects to Item No. 14, $250 attorney's fees for the executor. This objection is not well taken. Assuming that $500 is a reasonable attorney's fee to be allowed the executor, and the evidence is to that effect, $250 would be a reasonable sum to be paid from the personalty that the executor held in trust.
The respondent then objects to Item No. 17, $350 attorney's fees, and Item No. 23, $1,150 balance of attorney's fees in the case of the will contest. She suggests that $750 would be a reasonable amount to be allowed in said account. These two items make a total of attorney's fees allowed in In re Will ofShepherd, supra, of $1,500. Two credible expert witnesses testified that $2,000 would be a reasonable fee for the handling of said case. In view of this evidence and the further fact that respondent was the one who caused the executor to incur this expense that it was expended in defending the trust fund, we are of the opinion that, under the peculiar facts of the instant case, that sum should be charged to the trust fund.
She then objects to Item No. 27, $519.88, executor's fees. We are of the opinion that this objection is well taken. The personal property was devised to the executor as a trust fund from which certain allowances were to be made the widow in lieu of dower. The widow having accepted this provision, she became a purchaser for value and was entitled to be protected to the full extent of the sum provided by the testator's will.
"Where a testamentary gift is made by a husband to his wife in satisfaction of her waiver of dower in his estate, the gift has a preference over all other unpreferred legacies, and will not abate with other specific legacies upon a deficiency of assets. It will even be given preference to specific devises. The theory is that a legacy in lieu of dower is based upon a valuable consideration *Page 28 with the same standing as a creditor. It is immaterial that the legacy given to the widow may exceed the value of the dower, as the testator is the best judge of the price at which he will purchase the relinquishment of the dower." 28 R.C.L. 304.
And where the estate consisted of other property in addition to the trust fund, the compensation of the executor should come from such other property when there were insufficient funds in the trust fund to fully carry out the trust.
She further objected to Item No. 28, $250 for the balance of attorney's fees. We have already covered this in relation to Item No. 14 and her objection to this sum is well taken.
On the first hearing on the final account, January 8, 1932, the widow filed a further objection to Item No. 6, $1,125, and Item No. 7, $1,575. These two items totaling $2,700, being the amount paid by order of the court as the widow's allowance for one year. She objected to this amount being charged against the personalty held in trust by the executor. To this item, William D. Allingham, as the devisee of the real property, also objected as being excessive. This item the executor paid by order of the court as the widow's allowance: Oregon Code 1930, § 11-403. The question presented is whether this sum should be charged to the trust fund. In the first place the order of allowance states that:
"It is, now, THEREFORE, ORDERED AND ADJUDGED by this Court that there will be and hereby is set apart out of the property of said estate independent of the trust fund mentioned in the will of the decedent for the support and maintenance of the widow of the deceased, Olive M. Shepherd, the sum of $225.00 per month for the period of one year from the date of the filing of the inventory of said estate, to be paid by the executor William D. Allingham to the said widow of *Page 29 the deceased monthly during the said period, provided, however, that said allowance shall be in addition to the amount set forth in the will of the deceased for the benefit of the said widow, or in addition to the dower right of said Olive M. Shepherd providing she elects to take the dower and not take under the will."
This order was made March 19, 1924, and the objection by the executor, made January 15, 1932, comes too late. Such objection was not made within a reasonable time and it would seem that even if well taken it would be ineffective as the court could not compel the widow to refund any part of what has been paid to her.
"Upon an application within a reasonable time an order of the court may be made modifying or revoking a former order of allowance, but such an order cannot be made retroactive in its effect or to require the widow to account for any portion of what she may have already received or expended. It has been held that no appeal lies from an order discontinuing an allowance to a widow. Where upon showing a change in the condition of the estate or the circumstances of the widow, a reasonable reduction or stoppage appears justified, all further property will fall into the general personal estate as assets." 24 C.J. 272, § 871.
The decree of the circuit court will therefore be modified, and the cause remanded with instructions to enter a decree settling the final account not inconsistent herewith. Neither party will recover costs in this court. It is so ordered.
BEAN and RAND, JJ., concur.