Decided December 31, 1912.
On Petition for Rehearing.
(128 Pac. 818.)
Mr. Justice Burnettdelivered the opinion of the court.
The substance of the contention for the plaintiff is that the county court, in ordering the sale of the premises in question, acted without having acquired jurisdiction. It is disclosed by the record that, when the petition for the order of sale was filed, the estate consisted of the following items of real property constituting its only assets: Seventy-two lots in Howe’s Addition to Portland; 2 lots in Wheatland Addition to Portland; and 5% acres of un-platted land adjoining Howe’s Addition. Different portions of the property in Howe’s Addition were subject to the lien of three several mortgages, leaving only blocks 3 and 4 in that addition unincumbered. The 5% acres and the two lots in Wheatland Addition were clear of liens of any kind.
9. The argument of the plaintiff is that the county court had no authority to direct the sale of his interest in the acreage realty for the payment of debts and expenses of administration because that property was specifically devised to him and hence could not be used for that purpose until all other assets of the estate were-exhausted. The reason fails, however, when we consult the will and learn from it that in one way or another the testator specifically devised all the land of which he died seised. The Howe Addition property was devised to the mother in the main to dispose of for the mainte*500nance of herself and her son and for the education of the latter; the two lots in Wheatland Addition went to her in severalty, and the acreage fell to her and her son as tenants in common. All of these are specific devises and, taken together, cover all the property of the testator so that the limitation of specific devises preventing the application of such property to the discharge of the indebtedness and administration expenses in the first instance, is set at large and has no application here. The will does not give any of the devises preference- over another. They are all of equal rank. Each of them, without reference, to the others, was subject to such debts and expenses as were properly chargeable against it. With this condition of the assets of the estate in mind, it remains to examine the petition for the order of sale and determine whether it stated facts sufficient to have given the county court jurisdiction to order a sale of the real property in dispute. We omit from Sections 1252 and 1253, L. O. L., the amendments, immaterial here, providing for the sale of real property in certain cases before the disposition of personalty, Laws 1905, p. 233, and quote those sections as they stood at the time of the transactions under consideration :
“Section 1252. When the proceeds of the sale of personal property have been exhausted and the charges, expenses and claims specified in Section 1249 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.”
10. “Section 1253. The petition for the order of sale of real property shall state the amount of 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 *501names, ages and residence of the devisees, if any, and of the heirs of the deceased, so far as known.” Sections 1172, 1173, B. & C. Comp.
The demands against the estate specified in Section 1249, L. O. L., are “funeral charges, expenses of administration and the claims, if any, against the estate.” Section 1254, L. O. L., requires that —
“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.”
In Section 1255, L. 0. L., the rule is made that,, “upon an heir or devisee, known and resident within this State, such citation shall be served and returned as a summons.”
Acting under these statutory provisions, the executrix who is at once the widow of the testator and the mother of his son, James Gladstone Howe, the plaintiff here, filed in the county court her petition for the sale of real property of the estate. That document recites her representative capacity; that the only personal property of the decedent which came to her knowledge, having been inventoried, was appraised as of no value; and that in pursuance of an order of the county court she had sold it to a person named for one dollar. Then follows this allegation :
“That the following is a statement of the charges, expenses and claims still unsatisfied against said estate so far as known and so far as the same can be ascertained, to wit: Claim of Edward Holman Undertaking Company for funeral expenses of decedent, $227.50; clerk’s fees to date, $10.75; advertising expenses, $2.50; attorney’s fees to date, $50.00; claim of Pacific Coast Abstract Company, $10.00; delinquent taxes for the year 1898, $89.25; and the mortgage indebtedness, amounting to $1,300, hereinafter described in the statement of liens on the real property of said estate.”
*502The real property of the estate is described in the petition with particularity either by lots and blocks or metes and bounds.. The condition of each parcel as to improvements, cultivation, and value is clearly stated, together with the amount and nature of the liens; the mortgages' hereinbefore mentioned and the tracts affected by each being particularly described. The petition avers:
“That the names, ages, and residences of the devisees of said James Howe are as follows: Carrie Howe, your petitioner, the widow of said decedent, aged 40 years; James Gladstone Howe, the son of said James Howe, aged 5 years, and W. L. Wheatly, aged 26 years, all residing at Portland, Multnomah County, Oregon. That the only heirs of the said James Howe are the above Carrie Howe and James Gladstone Howe.”
The petition narrates ineffectual attempts of the testator in his lifetime to make sale of the realty and avers the belief of the petitioner that the property would command better prices if offered at private sale for part cash and the remainder in deferred interest-bearing payments. The petition concludes with the averment:
“That your petitioner is without means to support herself or her son, the said James Gladstone Howe; that it is necessary to sell a portion of the said property to provide for the payment of the funeral expenses of said decedent, expenses of administration, and debts of the decedent, and for support of petitioner and her son, the said James Gladstone Howe, and it is for the best interest of said estate that she be permitted to sell all or any part of the above-described real property of said estate at private sale, for the reason that the said petitioner cannot at this time, nor can any one, tell what part of the real property may be sold to- the best advantage of said estate and, by obtaining leave to sell at private sale any part of said real property of said estate, one proceeding only becomes sufficient to provide for all the needs of said estate and the cost and expense of further proceedings are thus saved.”
*503No pretense is made but what citation in due form of law was regularly issued out of the county court and served as a summons upon the plaintiff in pursuance of this petition; that, so far as it depended upon the regularity of the issuance and service of this process of court, a guardian ad litem for the plaintiff here was properly appointed by the county court; and that the guardian so appointed answered for the minor, James Gladstone Howe, assenting to the sale as prayed for in the petition. The whole attack of the plaintiff here is grounded on the alleged insufficiency of the petition. In our judgment, however, the petition in point of allegation fully meets all the requisites of such a pleading as laid down in Section 1253, L. O. L. It was sufficient to give tne county court jurisdiction of the subject-matter. Speaking in general terms, it disclosed that there were claims and' charges against the estate involving not only particular parcels of land under mortgages, but also the entire holdings of the estate under general charges for funeral expenses, taxes, and the like; that the proceeds of the sale of personal property, only one dollar, was not adequate to discharge the obligations of the estate. The served citation gave the court jurisdiction of the persons of those interested in the realty, among whom was the plaintiff here.
11. Having jurisdiction of the persons, the subject-matter, and the thing involved, the county court was in a position to make an order of some kind for the sale of some of the landed property of the estate. Thus equipped, the county court with all propriety could have made an order of sale superior to all the criticisms urged by plaintiff against the order actually entered of record. It had a right to decide, although it may have decided wrongly. In the words of Mr. Justice Lord in Nicklin v. Hobin, 13 Or. 406 (10 Pac. 835): “The question of whether a *504judgment is right or wrong is a very different one from whether it is valid or void. Although it is the aim of courts to decide rightly, yet the power to decide necessarily carries with it the power to decide wrong as well as right; and, where a court has jurisdiction, the judgment or determination is binding and obligatory until reversed without reference to the question of whether it is right or wrong.” Alexander v. Gill, 130 Ind. 485 (30 N. E. 525) ; Crabill v. Crabill, 22 Or. 588 (30 Pac. 320) ; Altman v. School District, 35 Or. 85 (56 Pac. 291: 76 Am. St. Rep. 468) ; McFarlane v. Cornelius, 43 Or. 513 (73 Pac. 325).
All the questions raised by plaintiff could have and should have been raised in answer to the citation or on appeal to the circuit court, or in other ways in the proceeding itself, or by some direct attack upon the resulting decision of the county court; but they avail him nothing when he assails the order of sale in this collateral litigation.
It is not necessary for us to decide whether or not the order of sale was improvidently made or extravagantly executed to the waste of the plaintiff’s patrimony. All we determine is that, on the face of the record as discussed before us, the county court had jurisdiction of the subject-matter and all of the persons interested, and being unfettered as to specific devises, because all the land was in one way or the other so devised, that tribunal had the power to decide rightly or wrongly, in either of which cases its decree is immune from this collateral attack.
We reiterate our former decision.
Affirmed : Rehearing Denied.