dissenting.
The majority holds that the money judgment against the personal representative entered by the trial court is not appealable. According to the majority, the judgment does not finally settle the rights and liabilities of any of the parties with an interest in the estate because no final account or decree offinal distribution has been entered. Even though all money judgments are, for all legal intents and purposes, final judgments, the majority holds that we lack jurisdiction under the above circumstances. For the reasons that follow, I disagree.
Preliminarily, ORS 19.010 establishes our appellate jurisdiction. Specifically,
“[a]ppeals from a circuit court sitting in probate are taken in the same manner as other appeals from circuit court. ORS 111.105(2). ORS 19.010 specifies what lower court determinations are appealable. The character of a document is to be determined by its content and not by its title. However, to constitute a judgment, the document must be so labeled[.] ORCP 70.” Goeddertz v. Parchen, 299 Or 277, 279-80, 701 P2d 781 (1985) (citation omitted).
In this case, the document from which the appeal is taken is labeled “FINDINGS, ORDER AND MONEY JUDGMENT.” Initially, the document expresses the trial court’s findings and its conclusion that appellant has breached her fiduciary duty as a personal representative. It then orders her to pay $2,279 to respondent, “as his portion of the estate of William A. Gollyhorn,” and respondent’s costs and attorney fees in prosecuting his objections to appellant’s final account. Finally, it recites a money judgment for those sums. It further provides that interest is to accrue on those sums “until fully paid.”
The judgment in this case complies with ORCP 70. Moreover, ORS 19.010(1) provides, “A judgment or decree may be reviewed on appeal as prescribed in ORS 19.005 to 19.026 and 19.029 to 19.200.” A judgment for money is a judgment within the purview of subsection (1). On its face, the judgment in this case is no different in content from any other money judgment that is appealable under ORS *39619.010(1) and is entitled to be treated in a like manner. Goeddertz, 299 Or at 280.
The majority says that the money judgment in this case is like the “order” in Harrington v. Thomas, 63 Or App 292, 663 P2d 1298, rev den 295 Or 617 (1983), because it does not close the estate or conclusively determine the extent of respondent’s interest in the estate. In Harrington, the order was entitled, “Order for Payment of Money to Conservator-ship” and required an attorney to refund attorney fees that he, as personal representative, had paid to himself from the estate. It was not labeled as a money judgment as required by ORCP 70 and contained no money judgment. Consequently, it could not have been a judgment within the meaning of ORS 19.010(1). Rather, the appellant urged that the order satisfied the requirements of ORS 19.010(2). We rejected that argument because the order was interim in character and the controversy could only be finally settled in the trial court by a decree of final distribution issued pursuant to ORS 116.113. As is evident, the money judgment in this case implicates ORS 19.010(1), not ORS 19.010(2) and is not like the order in Harrington.
The majority’s theme that the judgment in this case is interlocutory in nature is incorrect. Nothing more has to be done to make this judgment final nor is it within the purview of a decree of final distribution. ORS 116.113 provides that the court “shall designate the persons in whom title to the estate available for distribution is vested and the portion of the estate or property to which each [heir] is entitled * * This judgment does not vest title in respondent to an asset of the estate. Rather, it represents expenses and attorney fees incurred by an heir who appears to have wrongfully appropriated an asset of the estate.
The trial court could properly enter a decree of final distribution under the statute without even mentioning the judgment or taking it into account by simply following the language of the statute and providing for distribution of the remaining assets of the estate. Plaintiff could hardly appeal from subject matter that is not a part of the decree of final distribution, and an objection to the final account’s proposed distributions would have no effect on an existing judgment. If *397the eventual decree of final distribution includes the judgment, then there will be two judgments of record representing the same award. If the eventual decree does not include the money judgment, then the majority has effectively deprived appellant of the ability to appeal. Moreover, the majority can send all the “signals” it wants to the trial court but, as a matter of law, nothing in its ruling compels vacation of the judgment or vitiates the judgment’s enforceability. The only way to avoid this conundrum is for the trial court to vacate the judgment voluntarily after this remand on its own motion or on the motion of plaintiff, something that the majority’s opinion does not require it to do.
In effect, appellant has been denied her day in court twice; once by the trial court and now by us as the result of the dismissal of her appeal. By holding that a money judgment arising out of a probate proceeding is not appealable under ORS 19.010, the majority has added an exception to the statute that is not there and has created a procedural nightmare that could result in an additional appeal and costs to an already depleted estate. Regarding the construction of statutes, ORS 174.010 requires us “simply to ascertain and declare what is, in terms or in substance contained therein, not to insert what has been omitted.” The failure to follow the legislature’s direction in that regard has resulted in the flaw in the majority’s analysis. In the final analysis, a money judgment entered by a probate court is appealable under ORS 19.010(1) like any other money judgment and there is no basis in law for the proposition that it ought to be treated any differently under ORS 19.010(1). We should hold that the judgment is appealable and reach the merits of this case.
For these reasons, I dissent.