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in respect to the condition of the promissory that the decedent's estate is ready for final notes, and thereupon denied the petition, and settlement. 18 Cyc. 1132. The application the petitioners appealed to the circuit court in the case at bar does not comply with this for that county, which reversed the order requirement, nor does it allege that the esof the county court and remanded the cause, tate "is fully administered," which fact is with directions to order the filing of a final a condition precedent to the imposition of account, in default of which to remove the the duty on the decedent's representative to administrator, and he appeals from such de- file a final account. B. & C. Comp. § 1202. (ree to this court.

If it be assumed, however, that an averment The transcript does not contain any testi- that all the debts of the estate have been mony, and the defendant's counsel state in paid is equivalent to a declaration of the their brief that none was taken in either legal conclusion that the estate is fully adcourt. The proceedings in the county court, ministered, whereby the personal property, when exercising jurisdiction in probate mat- including the notes and accounts, devolve ters, are required to be in writing, and, though to the next of kin or distributees, it necesno particular pleadings or forms are pre- sarily follows that all the heirs or persons scribed, the practice is in the nature of a interested must join in the application, as suit in equity as distinguished from an ac- the petition, to compel the performance of tion at law. B. & C. Comp. $ 1100. Upon the duty imposed on the representative, must :n appeal from a decree in equity given in allege that they had agreed among themany court, the suit must be tried upon the selves to accept such assets in lieu of cash. transcript and evidence accompanying it. Id. Money, as a measure of the value of com$ 555. If no evidence is brought up in such inodities, can be separated into ratable parts,

case, the only question to be considered while personal property, unless it is of the is whether or not the pleadings are sufficient same kind and worth, is not readily suscepto uphold the decree. Ilowe v. Patterson, 5 tible of an equal division. Where this class Or. 353; Wyatt v. Wyatt, 31 Or. 531, 49 Pac. of property, belonging to a decedent's estate, 3.73). As the decree rendered in the circuit is to be distributed to several persons, reason ourt is based on the petition, the applica- establishes the rule that such assets should tion to compel the administrator to file a be converted into money in order that the final account must be treated as a complaint, proportional allotment might be facilitated. which, if it fails to state facts sufficient "The title to the personal property of a to entitle the petitioners to the relief pray- deceased person," says Mr. Justice Boise, in ed for, the defect in this respect was not Winkle v. Winkle, 8 Or. 193, "must be deWaived by answering over, if it be assumed rived from the administrator through the ihat the demurrer to the petition was over- orders of the court.” An administrator or ruled. B. & C. Comp. $ 72. The sufficiency

executor can transfer a chose in action to of the petition must be determined from an a distributee in payment, or on account of examination of the statute prescribing the

his share in an estate, and the latter may time of filing a final account by the repre

maintain an action thereon in his own name. sentative of a decedent's estate, which is Weider v. Osborn, 20 Or. 307, 25 Pac. 715. is follows: "When the estate is fully ad- If it be assumed that McDonald could asministered, it shall be the duty of the ex- sign a part of the promissory notes in his ecutor or administrator to file his final ac- possession to the petitioners and their (ount.” Id. $ 1202. It will be remembered brothers, who are evidently entitled to an that the petition states that the personal

undivided one-fourth of Morrison's estate, property, including notes and accounts, be- and if it also be considered as true that they, longing to Morrison's estate, was appraised as tenants in common, could secure such a at $12,388.70, and that the administrator's title to the commercial paper as would ausemiannual account disclosed that he had thorize them to maintain actions thereon in received from the sale and collection of that their joint names, how is it possible to asclass of assets the sum of $3,187.51; thus sign to them a ratable share of the choses conclusively showing that he had in his pos- in action, some of which are probably unsession at the time the account was filed per- collectible, when it is

it is remembered that sonal property and notes and accounts that three-fourths of the notes belong to other had been valued by the appraisers at $8,- heirs? If it be supposed that a lawful dis901.29. An administrator is required to col- tribution of the personal property of a delect the debts due the estate, and, if it ap- cedent's estate could be made to a part of pear that they remain uncollected through the next of kin, who acquire a title thereto his fault, he is accountable therefor (B. & in their joint right, it might possibly be adC. Comp. $ 1206), but whether or not a rea- mitted that the remaining heirs could consonable time had elapsed for the perfor- sent thereto, but the right to the assignment mance of the duty thus imposed is not in such case would depend upon the agree important. as the only question involved ment of all the interested parties. So, too, herein is the sufficiency of the petition. based on such assumption, all the distributees

In an application by a person interested in might stipulate that the personal property the ultimate accounting by an administrator and choses in action, the proceeds of which or executor, the petition therefor must aver would belong to them, might be divided in a

specified manner, thus determining as be- the taking of private property without due tween themselves that the estate was fully process of law and for private purposes. administered and possibly necessitating an A similar law was held constitutional in ultimate settlement of their property in- Towns v. Klamath County, 33 Or. 225, 53 terests, but such case the right to insist upon Pac. 604, and in Sullivan v. Cline, 33 Or. 260, the filing of a final account must depend 54 Pac. 151. The validity of such legislation upon the agreement. The contract whereby has since been recognized. Fanning v. Gilthey stipulate, respectively, to receive specific

liland, 37 Or. 369, 61 Pac. 636, 62 Pac. 209; articles of personal property or certain choses Lesley v. Klamath County, 41 Or. 491, 75 in action, or that such part of the estate Pac. 709; Kemp v. Polk County, 46 Or. 546, may be converted into money by some other 81 Pac. 210. But it is unnecessary for us person for their use and benefit, being the to re-examine the question at this time, as basis of their right, such agreement must the judgment must be reversed on other necessarily be alleged, in order to enable

grounds. them to secure a surrender of the property Neither the petition for the location of the by the administrator or executor and the road nor the order of the county court apfiling of a final account by him.

pointing the viewers and directing them to The petition in the case at bar fails in meet at the time stated to view out and lothese respects, and hence it does not state

cate such road specifies whether the profacts sufficient to entitle the petitioners to posed easement shall be a county road 30 the relief sought, and, this being so, the

feet in width or a gateway of a specified decree of the circuit court is reversell and

width, and not less than 10 nor more than the order of the county court affirmed. 30 feet wide. That matter is left optional

with the viewers-a power which it was

held in Lesley v. Klamath County, supra, 118 Or. 617)

could not be exercised by them.


ceedings in the case referred to were had et al.

under the law now in question. The peti(Supreme Court of Oregon. Dec. 18, 1906.)

tioner prayed that viewers be appointed to HIGHWAY S- ESTABLISHMENT-PETITION-OR

view out and locate a county road 30 feet in DER.

Where neither the petition for the location width, and the order of the county court folof a highway nor the order appointing viewers lowed the prayer of the petition. Objection specified whether the proposed easement should

was made to the proceedings on the ground be a county road 30 feet wide or a gateway of specified width, but left such matter optional

that they did not leave it discretionary with with the viewers, which power they had no right the viewers to locate either a county road or to exercise, under Laws 1903, p. 269, $S 20-24,

a gateway, as in their judgment might seem providing for the location of such highways, the

best. The court held the objection without proceedings were void. [Ed. Note. For cases in point, see Cent. Dig.

merit, saying: “The question presented devol. 25, Highways, $ 55.]

pends upon the provisions of sections 4966

and 4967, B. & C. Comp. Properly construed, Appeal from Circuit Court, Malheur Coun

the petitioner is authorized to petition for ty; George E. Davis, Judge.

either a road or a gateway, and it is not opWrit of review by John Shannon against

tional with the viewers to establish which the county court of Malheur county and

they may choose, but they must view out the others. From a judgment for defendants,

easement prayed for, and as directed by the plaintiff appeals. Reversed.

county court, so as to do the least damage W. H. Brooke, for appellant. Soliss & to the land through which it may pass." In Bryan, for respondents.

this case, the viewers were not required to

view out and assess the damages sustained BEAN, C. J. This is a writ of review to | by the location of a definite easement, but test the validity of the order and judgment were directed to "view out and locate a of the county court of Malheur county in the county road or gateway not less than ten matter of the location of a road of public nor more than thirty feet in width," and to easement over and across the lands of the assess the damages sustained, thereby leavplaintiff, and comes here on appeal from the ing it optional with them whether they judgment of the court below affirming the should locate the one or the other. The petirulings of the county court.

tioner for the location of the road should The proceedings are had under sections 20 have specified in his petition the easement to 24, inclusive, of the road law of 1903 desired, and the county court should have (Laws Or. 1903, p. 269). These sections are determined the one to be located and directed substantially the same as sections 4075 to the viewers to proceed accordingly. Because 4079, inclusive, of Hill's Ann. Laws, 1892, as neither the petition nor the order of the amended in 1899 (Laws Or. 1899, p. 164). It county court complied with the statute the is earnestly insisted that the law is uncon- proceedings are void. stitutional and void because it provides for Judgment reversed.

(18 Or. 444)

drawn by a sale of the property to another MORTON . OREGON SHORT LINE RY. | within the time and before acceptance. CO.

[Ed. Note. For cases in point, see Cent. Dig.

vol. 48, Vendor and Purchaser, $ 17.] (Supreme Court of Oregon. Dec. 18, 1906.) WATERS AND WATER COURSES-ALTERATION OF

Appeal from Circuit Court, Union County ; CHANNEL.

Robert Eakin, Judge. Where a railroad company, acting under a Action by A. P. Sprague against A. C. license from a riparian proprietor, constructed a Schotte and another. From a judgment in jetty into a stream, the effect of which was

favor of defendants, plaintiff appeals. Ata to cause the water to flow almost at right angles against plaintiff's land, injuring it, and

firmed. the court decided that the jetty was an unlawful

This is a suit to enforce the specific perobstruction, which plaintiff was entitled to have abated, the order might be modified on a show

formance of the following written instruing that the demolition of the entire jetty was ment: “Elgin, Oregon, Feb. 6th, 1905.This unnecessary, and that a retention of a part of

agreement, entered into this sixth day of it would not in jure the plaintiff's premises, but would afford protection to the railroad.

February, 1905, between A. O. Schotte and

A. P. Sprague, both of Elgin, Ore., whereby Motion for rehearing. Original opinion A. C. Schotte agrees to sell, deliver and trans87 Pac. 151. Defendant railroad company, fer by good and sufficient warantee deed to under license from a riparian owner, con- said A. P. Sprague his homestead on the Walstructed a jetty in a stream, the effect of lowa river; legal description is as follows: which was to cause the water to flow al

W. 14 of N. 14, S. E. 44 of N. W. 14, N. E. most at right angles against plaintiff's land

44 of S. W. 14, of Sec. 26, Tp. 3 North of and injure the same.

Range 40 E. W. M., for the sum of sixteen

hundred dollars ($1,600.00). This agreement MOORE, J. After the opinion was an- is in force from this date to April first, 1905, nounced in this case the defendant's counsel

when it will become void. [Signed] A. C. moved to modify the decree rendered in this

Schotte.” The complaint, after setting out court so as not to require the entire demoli

the instrument in full, alleges that on March tion of the long jetty, insisting that the reten

8, 1905, the defendant Schotte, without the tion of a part thereof will not injure the

knowledge or consent of plaintiff, and for plaintiff's premises, and will afford some pro- the purpose of defrauding him, sold and contection to the railroad embankment from veyed the land described in said instrument erosion from the water. It is impossible to to his codefendant, the Palmer Lumber Comdetermine from the

the evidence before us pany; that at the time of such purchase the whether or not the motion interposed should lumber company had full knowledge and no be allowed, and, this being so, the cause, tice of the agreement in question and that upon the payment by the defendant of the plaintiff intended to comply therewith; that costs and disbursements taxed, will be re- thereafter, and on the 11th day of March,

manded, with directions to take testimony the plaintie, without notice or knowledge of

upon this question, and, if it shall appear the sale and conveyance to the lumber comtherefrom to the trial court that any part of pany, tendered to Schotte the full sum of the long jetty can be allowed to remain with $1,600, the purchase price of the land, and out injury to the plaintiff's premises, to enter demanded a deed therefor, but that he rea supplemental decree to that effect, but, if fused and neglected to make or execute the this cannot be done, to deny the motion.

same. The prayer is for a decree that the lumber company be adjudged to hold the le

gal title to the property in question in trust (48 Or. 609)

for the plaintiff, and for $500 damages. A de SPRAGUE V. SCHOTTE et al.

murrer to the complaint was sustained, the (Supreme Court of Oregon. Dec. 18, 1906.) suit dismissed, and plaintiff appeals. 1. SPECIFIC PERFORMANCE - CONTRACT - VA

C. E. Cochran, for appellant. C. H. Finn, LIDITY-MUTUALITY. A writing by which defendant, S., agreed

for respondents. to sell to plaintiff by warranty deed a certain described tract of land for the sum of $1,600,

BEAN, C. J. the agreement to be in force from date until

(after stating the facts.) April 1, 1905, was a mere offer of sale, and

The demurrer was properly sustained. The unenforceable as a contract for want of mu- instrument sued on is not a contract. There tuality.

is no mutuality, and it is not supported by [Ed. Note.--For cases in point, see Cent. Dig.

any consideration. It is merely a written vol. 44, Specific Performance, $$ 90, 95.]

offer by the defendant Schotte to sell the 2. SAME CONSIDERATION.

land therein described to the plaintiff at any Such agreement was also unenforceable for want of consideration,

time within the period stated, and was sub[Ed. Note. For cases in point, see Cent. Dig. ject to revocation prior to acceptance. Bishvol. 44, Specific Performance, 8140.]

op, Contracts, $ 325; Wharton, Contracts, $ 3. VENDOR AND PURCHASER-OFFER TO SELL 10; Gordon v. Darnell, 5 Colo. 302; DickinLAND-ACCEPTANCE-WITIIDRAWAL.

son v. Dodds, L. R. 2 Ch. Div. 463; Litz v. A mere offer to sell land at a specified price within a certain time might be withdrawn

Goosling (Ky.) 21 L. R. A. 127, note. It was at any time before acceptance, and was with- | capable of being converted into a valid contract by the tender of the purchase money McManis guardian of the person, Ida M. within the time stated and before its with- Bischoff and another appeal. Affirmed. drawal by Schotte. Boston & Maine R. Co.

John L. Sharpstein, for appellant. Marvin v. Bartlett, 3 Cush. (Mass.) 224. But, until

Evans, for respondent. such acceptance, there was no contract which could affect the title to the land or give the plaintiff vested rights therein. Mers v. RUDKIN, J. Gertrude Masterson, a resiFranklin Ins. Co., 68 Mo. 127; 21 Am. &

dent of Walla Walla county, is a minor of Eng. Enc. Law. (2d. Ed.) 925. Where an of- the age of about 11 years. On June 17, 1898, fer like the one in question is accepted, the when of the age of about three years she minds of the parties meet and the contract was legally and regularly adopted by one becomes complete and binding on the giver of Sinah Masterson, and continued to reside the option and all who claim from him with with her adopted mother until the death of knowledge thereof, and may be enforced the latter some time during the year 1904. against them. Ross v. Parks, 93 Ala. 153, Upon the death of the adopted mother, Sarah 8 South. 368, 11 L. R. A. 148, 30 Am. St. Rep. I. Smith was appointed guardian of the per47; Haughwout and Pomeroy v. Murphy, 22 son of the minor, and continued to act as Y. J. Eq. 531; Barrett v. McAllister, 33 W. such until her death on the 22d day of JanVa. 738, 11 S. E. 220. But, until acceptance,

uary, 1906. Since the death of Sarah I. it imposes no obligation whatever on either Smith the minor has resided with the respondparty, and is subject to revocation. The sale

ent Emma J. McManis, a daughter of Sinah of the land by Schotte to the lumber com- Masterson, deceased. Soon after the death pany, as appears from the complaint, was

of Sarah I. Smith, the respondent filed her made prior to the acceptance of the offer by petition in the superior court of Walla Walla the plaintiff and before there was any con

county, praying that she be appointed guardtract for the sale of such land. The plain- ian of the person and estate of said minor. tiff, therefore, had at the time no interest

Before the hearing on this petition simiin the property, legal or equitable, which he

lar petitions were presented to the court could enforce against Schotte or a purchaser

by the appellants Ida M. Bischoff and Kathafrom him. It is unnecessary to consider

rina Bischoff, the natural mother and grandwhether the sale operated as a revocation or

mother of the minor. The court heard all withdrawal of the offer. If it did not, and

three petitions together, and appointed the the subsequent acceptance by the plaintiff,

respondent guardian of the minor's person without knowledge of such sale, converted

and one A. L. Lorenzen guardian of her the proposal into a valid contract between

estate. Ida M. Bischoff and Katharina Bischhim and Schotte, such contract would not re

off have appealed from that portion of the late back and affect the title of the land at the time of the sale to the lumber company.

order appointing the respondent guardian of

the person. The decree is affirmed.

The court found that each of the petition

ers was a suitable and proper person to be ( 15 Wash. 48)

appointed guardian of the person of the In re MASTERSON'S ESTATE.

minor, but that, by reason of the fact that

the minor had spent nearly all her time dur(Supreme Court of Washington. Dec. 15, 1906.)

ing the past seven years in the homes of 1. GUARDIAN AND WARD — APPOINTMENT OF

Sinah Masterson, Sarah I. Smith, and the reGUARDIAN-RIGIIT OF PARENTS-EFFECT OF ADOPTION.

spondent, the latter was the most suitable Under Ballinger's Ann. Codes & St., 8 6483, person for the guardianship. If the welfare providing that, by an order for the adoption of the minor is the only question for conof a child, the natural parents shall be divested of all legal rights and obligations in respect

sideration on this appeal, the order should to such child, a decree of adoption consented

be affirmed, as no abuse of discretion in to by the natural mother of a child divested the selection or appointment of the guardian the mother and grandmother of any right to ap

is shown. If, on the other hand, either of pointment as guardian given by section 6399 to the mother of a child in case of the decease

the appellants has a legal claim to the guardof the father.

ianship, the order must be reversed, as the 2. SAME--INTEREST OF GUARDIAN.

court has found that they are suitable and Where the court found that the daughter

proper persons. of an adoptive parent of a child, appointed as

Section 6399, Ballinger's guardian of the child, was a suitable and proper

Ann. Codes & St., provides that, “the father person, the fact that it would be to her interest of the minor if living, and in case of his to prevent the marriage of the ward as she decease the mother, being themselves rewould inherit a portion of the ward's estate

spectively competent to transact their own in the event of her death without issue is not ground for refusing the appointment.

business, shall be entitled to the guardianship

of a minor.” Under this section the appelAppeal from Superior Court, Walla Walla

lant Ida M. Bischoff was entitled to the County; Thos. H. Brents, Judge.

guardianship, the father of the minor being In the matter of the guardianship of the dead, unless she waived or forfeited such person and estate of Gertrude Masterson, a right by consenting to the adoption of the minor. From an order appointing Emma J. | minor by Sinah Masterson, now deceased. Section 6483, Ballinger's Ann. Codes & St., FULLERTON, HADLEY, and CROW, JJ., relating to the adoption of children, provides concur. MOUNT, C. J., and DUNBAR, J., as follows: "By such order the natural par- not sitting. ROOT, J., concurs in the result. ents shall be divested of all legal rights and obligations in respect to such child, and the child shall be free from all legal obligations

(15 Wash. 31) of obedience and maintenance in respect to

NELSON et al. v. CITY OF SPOKANE. them, and shall be, to all intents and pur

(Supreme Court of Washington. Dec. 15, 1906.) poses, the child and legal heir of his or her 1. MUNICIPAL CORPORATIONS TORTS -- DE

FECTS IN HIGIIWAYS-PERSONAL INJURIES. adopter or adopters, entitled to all the rights

Where there were two ways, about 9 feet and privileges and subject to all the obliga- apart, one of which was 18 inches to 2 feet tions of a child of the adopter or adopters higher than the other, each formed by common begotten in lawful wedlock: Provided, that

travel and not laid out by the city, though

within the city limits, and each safe within its on the decease of parents who have adopted own limits, the city is not liable for injuries a child or children under this chapter, and caused by attempting to turn from the higher the subsequent decease of such child or

to the lower road. children without issue, the property of such


Where a husband, in driving along a road adopting parents shall descend to their next formed by common travel within the city limits, of kin, and not to the next of kin of such

attempted to turn to another parallel road, 18 adopted child or children." And we are

inches to 2 feet lower, and the vehicle was over

turned, resulting in injuries to his wife, he was constrained to hold that, by virtue of this

guilty of contributory negligence, barring any section, and the decree of adoption, the right to recover therefor. naturel mother waived and forfeited any Appeal from Superior Court, Spokane Counright or claim she might have under sec- ty; Wm. A. Huneke, Judge. tion 6399, supra. By the decree of adoption Action by Sarah Nelson and her husband the child became, to all intents and purposes, against the city of Spokane. From a judg. the child of her adoptive mother, and con- ment in favor of plaintiffs, defendant appeals. tinued to be such even after her death. The Reversed and remanded. natural parent, by her voluntary act in con

J. M. Geraghty and Alex. M. Winston, for senting to the adoption of her child by an

appellant. Hamblen, Lund & Gilbert, for other, became divested of all legal rights and

respondents. obligations in respect to such child, and the situation was not changed by the death of

DUNBAR, J. This is an action brought the adoptive parent.

against appellant by respondents to recover It is next contended that the grandpar- the sum of $5,000 for personal injuries reent is entitled to the guardianship, upon the ceived by respondent Sarah Nelson on Audeath of the parents, under section 6399, as gust 6, 1905, by reason of an alleged defective construed by the courts. Conceding this to highway in the city of Spokane. As we unbe true, the rights of the grandparent, like derstand the record, from the briefs and plats those of the natural parent, were divested by submitted, the place of the accident was withthe decree of adoption.

in the corporate limits of the city of Spokane, Lastly, it is contended that it would be but outside of the settled portion of said city. to the interest of the respondent to prevent Through an 80-acre tract of land, that was the marriage of her ward, as she would in

unplatted and through which no streets ran, herit a portion of the ward's estate in the

there had been made by travel three roads, event of her death without issue, under

starting from the same point of travel on the section 6483, supra, and that for that reason

road from Medical Lake to Spokane, diverging the respondent should not be appointed.

for the space of 400 or 500 yards; two of The same objection might be urged against

said roads then converging and the other one the appointment of the parents or any rela

bearing off in another direction. These roads tive who would inherit a portion of the ward's

were made by common travel, and at the placé

where the accident occurred were about 9 estate in the event of her death without issue.

feet apart. The evidence is a little conflicting Such a contingency is rather remote, and fur

in regard to this, but we conclude from the thermore, the contention is inconsistent with

whole testimony that that was about the disthe finding of the court that the respondent

tance. One of these roads was higher than is a suitable and proper person for the

the other by from 18 to 24 inches. The reguardianship. The control of the guardian

spondents, with six other people, in a convey. ceases as soon as the female ward attains the

ance or hack drawn by two horses, had tray. age of 18 years, and should the guardian

eled over one of these roads on the morning withhold her consent to the marriage of her

of August 6th, going some distance into the ward during minority from any such sordid

country. Returning that evening after dark, motive as is here suggested, the courts will the respondent William Nelson, who was driv. be amply able to protect the rights of the ing the team, undertook to leave the road upward.

on which he was traveling and get into the We find no error in the record, and the lower road. In doing so, the wagon was over. judgment is affirmed.

turned, and the injury for which this action

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