Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-30

or knowledge. Id. Sec, HI A fail
ure to comply with this mandate con-
stitutes a breach OF duty which may
render the person, upon whom the OBJ
legation rests, liable to removal In
re Holidays Estate, is Ore 16S; In
re Hills Estate, 22 Ore. 2l0; In re
Barnes Estate, SO Ore. 279.
1t will be remembered that apprais-
ers were appointed March %, 1910,
but that no inventory of the estate
was filed until July 18th of that year.
For the failure to comply with the
requirement of the statute in this par
ticular the answer to the petition
AYERS that the delay was Occasioned
by the absence of one of the apprais-
ers, and also to acquire information
respecting some property of the de-
ceased at Dillon, Montana. The allie
cation referred to presented an apol-
ogy for the procrastination, and it was
within the discretion oG the county
court to determine whether or not the
excuse was sufficient. That tribunal
determined the eXtenuating circum-
stances relied upon were inadequate
to eXculpate the delay in failing to
comply with the demand of the stat
ute and the conclusion thus reached
was affirmed by the circuit court.
II the want of a reply to the aver
ment of new matter in the answer,
respecting the cause of the delay to
file the inventory, admitted the truth
of such allegation, the validity and
sufficiency of the excuse remained
and was to be determined as a matter
of discretion, so that Baker was not
by being deprived of an
opportunity to offer testimony on that
subject
After the cause was decided bv the
circuit court justification for the
delay was undertaken to be estab-
lished by supplemental affidavits Of
fered in support of a motion for a
rehearing 1t is stated in one of the
that when the answer to the
petition was prepared, the county
judges allowance of further time in
which to file the inventory was over
looked. 1t nowhere appears, however.
that such fact was not remembered at
the time the cause was tried anew in
the circuit court when that evidence
could have been produced. The affi-
dayits do not make such a case as to
show that the circuit court abused its
discretion in refusing to grant a new
trial
Considering the executors alleged
adverse interest as another ground for
MS removal, the rule is settled in this
state that while county court in the
exercise of its probate jurisdiction has
authority to entertain proceedings in
the nature of discovery against
person charged with an appropriation
OF property belonging to decedent's
estate, such power is exhausted with
the disclosure and cannot be extended
to determine the title to the property
when asserted to be in another, which
right must be litigated in a court of
ordinary jurisdiction Gardner Y. Gill
Than, 20 Ore, 596; Dray V. Bloch. 90
Ore. 347; In re Bolanders Estate. 9S
Ore' 49O; Harrington V. Jones. SO Ore.
237. - wy
Ihe answer to the petition mani
.ests an interest claimed by Baker
hat is adverse to the legatees' re-
'pectlng the ownership of the drafts
Tor 100000 and the county court was
)owerless to determine the question
d a gift eausa mortis, though under
AIKEN to be set forth by the executor.
The aVerment of Bakers title to the
property was tantamount to dis
closure and rendered it unnecessary
o controVert by reply such allega-
ion. The motion for decree on the
pleadings invited determination of
he issue of law as to whether or not
me executors interest was SO antago-
llstlc as to require his removal in
he exercise of a sound discretion.
1t was impossible for Baker to bring
an action against himself to determine
MS right to the 100000, and he can
lot be permitted to be the Judge of
ais own title to the property when
other parties assert claim to it. An
Executor is quasi trustee, who should
De Indifferent between the estate and
claimants Of the property, eXcept TO
1t for due administration and
Nhen his interest conflicts with such
light and duty, the county court in
The exercise OF a sound discretion NAV
,emove him. In re Mills Estate. %
Ore. 2lO; Marks V. Coats, 81 Ore. 600.
The executor herein was not re-
luired to give bond for the faithful
performance of his duties. If he had
appropriated the S4,00O.OO and the
light of the petitioners to the money
could be established by judgment they
would be remedless unless he nos
'essed sufficient property out ofwhich
he amount could be made. In his
answer Baker did not offer to execute
an undertaking whereby the legatees
could have been indemnified for any
oss they might have sustained, and
IS his interest is adverse to theirs.
and possibly to the rights of the es-
ate his removal was an exercise of
sound discretion which should not be
disturbed.
1t follows that the decree of the cir
'uit court should be affirmed and it
S so ordered.
L i