Appeal from Circuit Court, Hood River County. M. W. Wilkinson, Judge. No. 5195.
Wayne C. Annala, Hood River, argued the cause for appellants. With him on the briefs were Annala & Lockwood, Hood River.
Roger L. Dick, The Dalles, argued the cause for respondents. On the brief were Dick & Dick, The Dalles.
Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.
This appeal is from an order of the circuit court dated December 29, 1971 in a declaratory judgment
suit commenced in 1962 involving the estate of Lois B. Miller, deceased.
Mrs. Miller died in 1959, naming as the principal heirs in her will John O. and Gordon W. Hilderbrand, sons by a previous marriage, and Willis H. Miller, her husband. Her principal gift to Miller was a life estate of her interest in property known as Butte Orchards in Hood River County, with the remainder to her sons. Miller made a claim that deceased's interest therein was limited to a value of $30,000, and he owned all the rest. The Hilderbrands contended that an undivided one-half interest in Butte Orchards, not just a $30,000 interest therein, belonged to the deceased. Miller was made executor of the estate by the will. He took possession of the estate properties. The dispute over ownership of this and other properties led to the filing of the declaratory judgment suit in 1962. Miller stepped aside as executor and the United States National Bank of Oregon became administrator, with the will annexed, in 1962.
In 1967 the circuit court made its decree which decided ownership of the properties in dispute. Among such properties, that the decree declared were the deceased's and presently to be estate property, was an undivided one-half interest in Butte Orchards. The other one-half interest in Butte Orchards was and is owned by Miller, and he operates the orchards. With reference to this and other properties the 1967 decree provided in paragraph 5:
"That the defendants [Miller] shall account for all moneys, rents, property, income, profits and payments from * * * and for the value of the use of, the real and personal property hereinbefore described [including Butte Orchards] which was the property of the deceased * * * and is the property
of the plaintiffs * * * and which is a part of the estate * * *. Such accounting may include any claim, credit or offset claimed by Willis H. Miller in regard thereto. * * * The said accountings shall be in complete form in accordance with usual accounting practices * * * and upon said accountings being made, the Court shall make its further declaratory judgment and determine what further proceedings and hearings are required on account thereof, and the Court shall make its further declaratory judgment and determine the amount of money, property, rents, income, profits and payments and the value of the use of said property and the just portion thereof which shall be paid and delivered over to the proper parties and decree other appropriate relief * * *."
The decree made no specific determination or mention of the order in which the devised property would be subject to payment of estate expenses.
The motion from which the order emanated which prompted the instant appeal was one of several motions made at the same time in 1971. It sought to require Miller to pay into the estate all of the income from the one-half interest in Butte Orchards which the decree of 1967 held was owned by the estate from the time of decedent's death. After hearing, the court made its order upon such motion in which it ruled
"* * * that the defendant Willis H. Miller pay to the United States National Bank of Oregon, Administrator * * * all of the income which he has received from the undivided one-half of said Butte Orchard property owned by the decedent at the date of her death, together with interest * * * to be used by the said Administrator with the Will Annexed on a pro rata basis with other estate income in paying and settling outstanding claims and obligations of the estate as provided by law."
Claims and obligations of the estate, including expenses of administration and attorney fees, are substantial. From the record before us, it appears that they probably will aggregate around $92,000. It appears from the same record that the administrator will have possession of property, not including the Butte Orchards property or income, or Sherman County wheat land or its ...