[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 220 IN BANC. Proceedings in the matter of the estate of Elizabeth M. Buelow, deceased, on objections by C.D. Nickelsen to the final account of William E. Williams, executor of decedent's estate. From a decree for executor, objector appeals.
AFFIRMED. In this proceeding, C.D. Nickelsen filed in the county court objections to the Final Account of William E. Williams, executor of the estate of Elizabeth M. Buelow, deceased. By the will of the deceased, a trust was created. In his Final Account the executor asserts that he is the trustee to whom the trust property should be distributed upon the closing of the administration. *Page 221 Nickelsen asserts that under the will he, Nickelsen, is the trustee to whom the executor should be ordered to deliver the trust property. The contest was transferred to the circuit court for trial; and from a decree in favor of Williams, the objector, Nickelsen, appeals.
Elizabeth M. Buelow died on the 16th day of October, 1941, leaving real and personal property of the estimated value of $40,000.00. Paragraph 6 of the will provides "the rest and residue of my estate, both real and personal, I give to my trustees" for the uses and purposes which are therein set forth. The will provides in part as follows:
"IX. I do hereby nominate and appoint C.D. Nickelsen to act as executor of this last will and testament and as trustee of the trust herein set up. If he be not living or able to serve at the time of my death, I do hereby appoint C.C. Lindley and if he be not living or able to serve at the time of my death, I do hereby appoint William E. Williams to act as executor and trustee under this Last Will and Testament."
At the time of the death of the testatrix, C.D. Nickelsen was the County Judge of Hood River County, and was therefore disqualified to act as executor under the will. Upon the filing of the petition of William E. Williams, Judge Nickelsen made an order reciting that he, Nickelsen, was disqualified by reason of his judicial office, reciting also the disqualification of C.C. Lindley and stating that "William E. Williams is the sole person named as executor by said Elizabeth M. Buelow, deceased, who is qualified and is a competent person to act as such executor." The order then provided that the will be admitted to probate and that letters testamentary issue to Williams "upon his taking *Page 222 the Oath of Office and giving the bond * * * to be approved by the Judge of this Court."
Upon the issuance to him of letters testamentary, the executor proceeded with the administration of the estate and on June 24, 1942, filed his final account. The concluding portion of that instrument reads in part as follows:
"* * * the executor herein is made trustee, under Paragraph VI of said will, of the rest and residue of the estate of the decedent during the life time of Gertrude E. Benson for the purposes specified * * *."
The executor then prayed for the usual order for the hearing of objections, settlement of the account and distribution in accordance with the will.
On July 13, 1942, Judge Nickelsen filed his "Contest of Final Account" and represented that "the will of said testator appoints the undersigned as trustee instead of William E. Williams." On the same day the contestant Nickelsen as county judge transferred the proceedings to the circuit court.
Subsequent to July 13, 1942, but prior to May 7, 1943, the estate became involved in extensive litigation, to which reference will later be made.
On the 7th day of May, 1943, the contestant Nickelsen filed the following:
"WAIVER
Come C.D. Nickelsen and waives any objection to the closing of the above entitled estate that may be raised by reason of a certain instrument filed in this Court and cause on the 13th day of July, 1942."
The Final Supplemental Account to the Final Account was filed August 29, 1944. *Page 223
On November 10, 1944, the contestant Nickelsen renewed his objections to the Final Account and alleged:
"That the present executor of the estate, William E. Williams, is not trustee under said will, and that the executor should not turn over to himself as trustee said property, since said executor is not named as trustee, but that said executor should be ordered and required to turn over the property of said estate to the objector herein, C.D. Nickelsen, trustee under the will."