Opinion
Argued March 22, 1927
Affirmed April 19, 1927 Rehearing denied May 10, 1927
From Multnomah: JOHN C. KENDALL, Judge.
For appellant there was a brief and oral argument by Mr. C.H. Finn.
For respondent there was a brief over the name of Messrs. Collier, Collier Bernard and Mr. G.A. Hall, with oral arguments by Mr. Henry T. Collier and Mr. Hall.
AFFIRMED. REHEARING DENIED.
This is an action by plaintiff, against the defendant as executor of the last will and testament of George W. Dayton, deceased, to recover for services performed by plaintiff for decedent as a nurse. A duly verified claim for the services was presented by plaintiff to defendant who rejected the claim. After its rejection and the expiration of the time limited by the Code for the commencement of an action against an executor or administrator, plaintiff brought the action in the Circuit Court for Multnomah County, under Section 386, Or. L., which provides that: "An action may be commenced against an executor or administrator at any time after the expiration of six months from the granting of letters testamentary or of administration, and until the final settlement of the estate and discharge of such executor or administrator from the trust, and not otherwise." The cause was tried to a jury and plaintiff had verdict and from the resulting judgment, defendant has appealed.
It is defendant's contention that the Circuit Court for Multnomah County had no jurisdiction to try the cause, and that plaintiff's only remedy was that provided for by Section 1241, Or. L. This latter section provides that upon the rejection of a claim against an estate, the claimant may present his claim to the County Court for allowance, giving the executor or administrator ten days' notice of such application and that that court shall have power to hear and determine in a summary manner, all demands against an estate which have been rejected by the executor or administrator, and that an appeal may be taken from its order allowing or disallowing the same.
Section 386 in its present form was enacted in 1862 and has not been amended or repealed, and prior to the 1885 amendment of Section 1241, was the only statute providing for the enforcement of a claim against an estate which had been rejected by an executor or administrator. By the 1885 amendment of Section 1241, the provisions giving to the County Court the power to hear and determine in a summary manner, a claim which had been so rejected and providing for an appeal to the Circuit Court from its decision thereon were added to its former provisions, thereby giving to a claimant whose claim had been rejected his choice of two remedies, either of commencing his action under Section 386, directly in the Circuit Court, or under Section 1241 of first submitting his demand to the County Court, whose decision was subject to appeal by the losing party. For it was held in Pruitt v. Muldrick, 39 Or. 353 ( 65 P. 20), that the 1885 amendment did not repeal by implication Section 386, and in that case it was also held that the remedy provided for by Section 1241 was not an exclusive remedy, the effect of which was to authorize a claimant to follow the procedure provided by either of said statutes. In re McCormick's Estate, 72 Or. 608, 612 ( 143 P. 915, 144 P. 425), holds to the same effect. Those cases are decisive of the question now raised in so far as it is contended that the remedy provided for by Section 1241 is exclusive.
Defendant's next contention is, that it was not within the power of the legislature to enact a law depriving the County Court of any county in the state of jurisdiction over probate matters and to vest such jurisdiction in another court, and he cites in support thereof, State v. McDonald, 55 Or. 419 ( 103 P. 512, 104 P. 967, 106 P. 444), and State v. O'Day, 41 Or. 495 ( 69 P. 542), both of which decisions were rendered prior to the 1910 amendment of Article VII of the state Constitution, Section 12 of which before the amendment provided that "the county court shall have jurisdiction pertaining to probate courts." Article VII as amended by Section 1a provides that, "The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law," and by Section 2b that "The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law." The effect of this amendment was to leave the jurisdiction over probate matters, until changed by legislative action, in the County Courts of the respective counties of the state as it had been formerly, and when so changed to vest such jurisdiction in such courts as should be designated by the legislature. In other words, under this amendment the provisions of Section 12 of Article VII of the state Constitution were to remain in full force and effect so long as no legislative action thereon was taken, but if there should be legislative action, then the will of the legislature as expressed in its enactments, and not the former provisions of said Section 12, would become effective, unless they were in contravention of some other provision of the Constitution: See State v. Farham, 114 Or. 32, 38 ( 234 P. 806).
In conformity to and as authorized by this amendment of the Constitution, the legislature by the act of February 17, 1919 (Laws 1919, Chap. 59; Or. L., §§ 3132-3140), abolished the County Court and the office of county judge in every judicial district in the state comprising but one county and having a population of over 100,000, and provided for the election of one circuit judge in addition to those then holding office in such district, and vested in the Circuit Court for that county the jurisdiction pertaining to probate courts, which act was applicable to Multnomah County because it formed a judicial district comprising but one county and having a population of over 100,000. See In re Will of Pittock, 102 Or. 159, 171 ( 199 P. 633, 202 P. 216, 17 A.L.R. 218). The only change in the procedure pertaining to a rejected claim against an estate is that provided for in Section 7 of the act, which reads as follows:
"In any proceeding or cause over which, by existing laws, the county court has jurisdiction, all of which are by the provisions of this act transferred to and heard by the circuit courts of the counties affected by this act, the procedure and practice shall be governed by the existing laws applicable to such proceeding without any change, except that appeals may be taken direct to the supreme court from the judgments of the circuit court in all such matters, and except further, that in a probate proceeding in which a claim is rejected by the administrator or executor, the claim may be presented to the court for rejection or allowance, as provided by section 1241 of Lord's Oregon laws, or, if either party demand it, the claimant must in the first instance bring action against the administrator in the manner in which other actions are brought, and the cause be tried and disposed of in the same manner as any other action."
But this section in no way deprives a claimant whose claim against an estate has been disallowed of his remedy to sue the executor or administrator as provided for by Section 386.
From this it follows that the Circuit Court for Multnomah County did have jurisdiction to hear and determine plaintiff's claim and that a claimant of a rejected claim against a decedent's estate may sue the executor or administrator directly in the Circuit Court for Multnomah County as provided for by Section 386, without first submitting her claim for allowance as provided for by Section 1241 to the particular judge of that court who at the time happens to be sitting for the transaction of probate matters.
Defendant's contention that this is an action against the defendant personally and that he was not sued in his representative capacity, is not sustained by the pleadings and is disproved by the very nature of the action and by the relief sought by plaintiff. For these reasons, the objection going only to the jurisdiction of the court and the right of plaintiff to maintain the action, the demurrer to the complaint was properly overruled, and so far as it pertains to defendant's motions for a nonsuit and for a directed verdict, they were properly denied.
But one other point need be considered. Section 1241 provides, "that no claim which shall have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant." Plaintiff sued for the reasonable value of her services. She offered the testimony of witnesses other than herself showing the performance and value of the services, which, if believed, was sufficient to warrant the return of a verdict in her favor for the amount sued for. This was a sufficient compliance with the requirements of Section 1241, and there being substantial evidence other than her own to prove her claim, the verdict of the jury is conclusive upon the question of the justness of the claim and the reasonable value of the services.
Other points are raised by defendant but we find no substantial error was committed and therefore the judgment must be affirmed.
AFFIRMED. REHEARING DENIED.
BURNETT, C.J., and COSHOW and McBRIDE, JJ., concur.