(30 Wash. 268) STATE ex rel. BUSSELLL ▼. BRIDGES, Commissioner, et al. (Supreme Court of Washington. Oct. 27, 1902.) MANDAMUS-BOARD OF APPRAISERS-SALE OF SCHOOL LAND-DISCRETIONARY POWER.

1. Laws 1897, p. 229, § 15, provides that the board of appraisers, upon a proper report made to them of a sale of school land, shall confirm the sale, "if the said board shall be satisfied that the land would not, upon being readvertised and sold, sell for at least twenty-five per cent. more" than what it previously brought. Held, that the power vested in the board to order a new sale was discretionary, and mandamus would not issue to compel such action, even at the instance of one who after the sale offered 25 per cent. more than its selling price.

Application for a writ of mandate, on the relation of E. V. Bussell, to compel Robert Bridges, commissioner of public lands, and others, to resell certain school lands. Writ denied.

Fred Rice Rowell, for petitioner. Thos. M. Vance, for respondents.

REAVIS, C. J. Application for writ of mandate. The petition, in substance, states that on January 27, 1900, lots 1 to 14, inclusive, in block 77, Seattle tide lands, were duly advertised for sale, and at said sale the highest and best bid was made by Daniel Kelleber; that the report of said sale was duly filed with the board of state land commissioners on January 30, 1900; that on March 31, 1900, and before the expiration of the 30 days provided by law for the issuance of the contract under said sale, petitioner filed in the office of the board an application in writing to purchase said described tide lands at an advance of more than 25 per cent. on the amount bid by said Kelleher at the sale, and deposited at the same time with said board one-tenth of the purchase price offered by petitioner, together with $1 for fees for the contract, and demanded of said board a readvertisement and sale of said parcels of tide lands; that the board declined to readvertise and reoffer said lands for sale, for the reason that petitioner was present and had the opportunity to bid at the sale already made. Petitioner prays that a mandate issue to respondents, directing them to readvertise and again offer for sale said tide lands. A general demurrer is made by respondents to the petition.

The question at issue arises upon the construction of section 15 of the Laws of 1897 page 229), "relating to public lands of the state," which is as follows: "That the member of the said board of appraisers, or the county auditor conducting the sale, shall, upon making sale of any school land, or stone, mineral or timber thereon, report such sale to the said board of appraisers, as provided in this act, together with other information touching the same as the said board shall have prescribed, and within thirty days from the date of the reception of

such report, if no affidavit showing that the interests of the state in such sale were inJuriously affected by fraud or collusion shall have been filed with said board and if it shall appear from such report that the sale was fairly conducted, and that the purchaser was the highest bidder at such sale, and that his bid was not less than the appraised value of the property sold, and if the said board shall be satisfied that the land sold would not, upon being readvertised and sold, sell for at least twenty-five per cent. more than the price at which it shall have been sold, and that the payment required by law to be made at the time of making sale has been made, the said board shall confirm the sale, and thereupon the chairman of the said board shall issue to the purchaser a contract of sale, as in this act hereinafter provided." The language found in this section, "if the said board shall be satisfied that the land sold would not, upon being read. vertised and sold, sell for at least twentyfive per cent. more than the price at which it shall have been sold," seems to vest in the board the discretion to order a new sale. The writ of mandamus can only issue to compel the board to perform a plain duty which is ministerial, and cannot control the exercise of discretion. Whatever right may exist to review an arbitrary exercise or abuse of discretion, such remedy cannot be invoked in mandamus.

(Supreme Court of Oregon. Nov. 3, 1902.) On petition for rehearing. Statement of facts amended, and petition denied.

For former opinion, see 69 Pac. 1027.

MOORE, C. J. It has been made to appear by a petition for a rehearing of this cause that the following paragraph on the first page of the statement of facts upon which the opinion heretofore rendered was based, to wit: "The bank, having secured many of the extensions desired, resumed business about April 30, 1894, when said certificates and check could have been paid, if plaintiff had not surrendered them to the bank, taking in lieu thereof, May 19, 1894, for the remainder due thereon, eight other certificates of deposit, each for the sum of $713.71, the first payable in three months, and one of the others every three months thereafter, with interest at 6 per cent. per annum" (Kiernan v. Kratz, 69 Pac. 1027),-might possibly prejudice plaintiff's rights at another trial. The clause will therefore be amended so as to read as follows, to wit: The bank, having secured many of the extensions desired, resumed busi

ness April 30, 1894, when said certificates and check were surrendered to the bank by plaintiff, who took in lieu thereof, for the remainder due thereon, eight other certificates of deposit, each for the sum of $713.71, the first payable in three months, and one of the others every three months thereafter, with interest at 6 per cent. per annum.

The petition will be denied.

(42 Or. 177)

DAVISSON et al. v. AKIN. (Supreme Court of Oregon. Nov. 3, 1902.)

EXECUTORS-INSOLVENCY-DEBTS DUE THE TESTATOR-"MONEY IN HAND."

1. Hill's Ann. Laws, § 1117, provides that an executor of an estate shall be liable for any claim of the testator against him, "as for so much money in his hands." Sections 1176 and 1177 charge the executor with the appraisement value of "property of the estate which may come into his possession," and provide that he shall not be accountable for debts uncollected without his fault. Held, that an insolvent executor was properly charged with the full amount of notes executed by him to the testator, since on his accepting the administration his debt became legally transmuted into "money in his hands," and was no longer "property of the estate coming into his hands," or a "debt," within the meaning of sections 1176 and 1177.

Appeal from circuit court, Benton county; George H. Burnett, Judge.

Final accounting of J. L. Akin, executor of the estate of Peter W. Mason and another. From a decree disallowing certain items, the executor appeals, and M: B. Davisson and another, creditors of the estate, appear as respondents. Affirmed.

J. K. Weatherford, for appellant. E. R. Bryson, for respondents.

BEAN, J. This is an appeal from a decree of the circuit court for Benton county disallowing certain items in the final account of the appellant as executor of the last will and testament of Peter W. Mason and Hannah R. Mason, his wife, deceased, and charging him with the amount of a promissory note executed and delivered by him to Peter W. Mason in his lifetime. Akin was insolvent at the time of his appointment as executor, and has ever since continued in that condition, and wholly unable to pay the note, or any part thereof. The respondents, who are creditors of the estate, contended, and the circuit court held, that, notwithstanding Akin's insolvency, he should be charged in the settlement of his final account with the amount of such note and interest, as so much money in his hands. The soundness of this view was the only question argued by appellant's counsel, and is the only one presented for our determination on this appeal. Without further statement of the facts, we shall proceeċ to its consideration.

1. See Executors and Administrators, vol. 22, Cent. Dig. §§ 302, 393.

It may be stated generally that at common law the appointment by a testator of his debtor as executor operated as a release or extinguishment of the debt, except as to creditors, because his appointment to the office suspends the action for the debt, and a personal right once thus voluntarily surrendered is forever gone. 2 Williams, Ex'rs, 625, 626; 2 Woerner, Am. Law Adm'n (2d Ed.) § 311. In some states of this country, however, the equitable rule that the appointment of a debtor as executor does not release the debt has been adopted, and in the absence of a statute the doctrine is promulgated that debts due a decedent's estate from the executor or administrator are to be deemed and accounted for by him as so much money in his hands, for the reason, as said by the supreme court of Massachusetts, in 1814, in Stevens v. Gaylord, 11 Mass. 256, where the rule was first announced: "As soon as the debtor is appointed administrator, if he acknowledges the debt, he has actually received so much money, and is answerable for it. This is the result with respect to an executor, and the same reason applies to an administrator, as the same hand is to receive and pay, and there is no ceremony to be performed in paying the debt, and no mode of doing it, but by considering the money to be now in the hands of the party in his character of administrator." See, also, Winship v. Bass, 12 Mass. 199; Jacobs v. Morrow, 21 Neb. 233, 31 N. W. 739; Miller v. Irby's Adm'r, 63 Ala. 477; Thompson v. Thompson, 77 Ga. 692, 3 S. W. 261. There is some conflict in the authorities, however, as to whether, in the absence of a statute, an executor should be charged for the amount of the debt owing from him to the estate, if he was and is in fact insolvent. See Leland v. Felton, 1 Allen, 531; Spurlock v. Earles, 8 Baxt. 437; Rader v. Yeargin, 85 Tenn. 486, 3 S. W. 178; Twitty v. Houser, 7 Rich. 153; State v. Gregory, 119 Ind. 503, 22 N. E. 1; Tracy's Adm'x v. Card's Adm'r, 2 Ohio St. 431; Wright v. Lang, 66 Ala. 389; Arnold v. Arnold, 124 Ala. 550, 27 South. 465, 82 Am. St. Rep. 199; Harker v. Irick, 10 N. J. Eq. 269; Terhune v. Oldis, 44 N. J. Eq. 146, 14 Atl. 638; Garber v. Com., 7 Pa. 265; Lyon v. Osgood, 58 Vt. 707, 7 Atl. 5. For the purpose of setting the question at rest, the effect of the appointment by a creditor of his debtor as executor, together with the liability of the executor for a debt due from him to the estate, has been regulated by statute in a majority of the states. The statutes of some declare that the appointment shall not operate to extinguish the debt, "but it shall be assets" in the executor's hands. Under such a provision, the general holding is that a debt due from an executor is placed on the same footing with debts due the estate from other sources, and he and his sureties are only required to account for the actual value thereof. 2 Woerner, Am. Law Adm'n (2d Ed.) § 311. Such are the cases of McCarty v. Frazer, 62 Mo. 263, and State v. Gregory,

supra, cited by appellant. Other statutes not only provide that the debt shall not be extinguished, but that the executor shall be liable therefor as for so much money in his hands, and such is our statute. Section 1117, Hill's Ann. Laws Or., provides that "the naming any one executor in a will shall not operate to discharge such executor from any claim which the testator had against him, but the claim shall be included in the inventory; and if the person so named afterwards take upon himself the administration of the estate, he shall be liable for such claim as for so much money in his hands at the time the claim became due and payable; otherwise he is liable for such claim as any other debtor of the deceased." The language of this section is plain and free from doubt, and the courts, with one accord, hold that under such a statute an executor, though insolvent, is bound to account for a debt due from him to the estate, and shall be charged therewith on settlement of his final account, as for so much money in his hands from the time the claim became due and payable. Baucus v. Stover, 89 N. Y. 1; McGaughey v. Jacoby, 54 Ohio St. 487, 44 N. E. 231; Treweek v. Howard. 105 Cal. 434, 39 Pac. 20; Lambrecht v. State, 57 Md. 240. The supreme court of New York, in Baucus v. Stover, supra, says: "It was the obvious purpose of the statute not only to save the executor's debt from extinguishment, but, in order to obviate all difficulty, doubt, and embarrassment, to cause it to be regarded as money in his hands. Such is the plain reading of the statute. The language is free from doubt and ambiguity, and needs no construction or interpretation. If it had been intended simply that the debt should be placed upon the footing of any other debt due the deceased, and merely to save it, for what it was worth, from extinguishment, the section could have stopped at the word 'inventory,' and the balance thereof would have been without any purpose or meaning. But it goes further. It not only provides that the debt shall not be discharged, and shall be included in the inventory, but it also provides that the debtor executor shall be liable for the debt as for so much money; and not only that, but that he shall apply and distribute the money in the payment of debts and legacies, and among the next of kin. We perceive no room for doubt. The statute says the debt shall be treated as money, and the courts have no right to say it shall not be so treated. This construction will not necessarily involve an insolvent executor in hardship and embarrassment. If a debtor unable to pay his debt is named executor, he may decline to accept the office." And in California (Treweek v. Howard, supra) it is said that the statute was passed with a view of settling disputed questions as to the liability of an executor and his sureties for debts and demands due or to become due from him to the testator of the estate which he represented, and under it such debt, from

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the time it becomes due, is to be treated as so much money in the hands of the executor. The supreme court of Ohio, in speaking on the same subject, says: "The language includes all executors indebted to their testator. imposes the same duties upon all alike, and applies the same rule to all, without distinction between those that are solvent and those that are insolvent, or on account of any circumstances or condition whatever. If such distinction or any distinction had been intended, it could easily have been made, and would have readily occurred to the legislative body, especially in view of the previous decisions of the court establishing the same rule declared by the statute. The failure to make the distinction suggested would therefore seem to have been intentional, but, if it were not, the courts cannot supply the omission without a manifest encroachment upon the province of the legislative body." McGaughey v. Jacoby, supra. And the Maryland supreme court says (Lambrecht v. State, supra): "It was the manifest intention of the act of 1798 to charge the executor absolutely with the debt which he might owe the testator, as assets in his hands; and, in order to remove all danger of misconstruction, it was provided that in case of his failure to account for the sum due, in the same manner as if it were so much money in his hands, his bond may be put in suit. The legislature did not intend to open the door to the inquiry whether the executor has the means and ability to pay his debt, but by express words declares that in all cases his debt shall be treated and accounted for 'as if it were so much money in his hands'; and this without regard to the question whether he is or is not able to pay it,-a question which in most instances it would be difficult, if not impossible, for the parties in interest satisfactorily to investigate or to settle." It is clear, therefore, that the solvency or insolvency of the executor is, under our statute, an immaterial inquiry, and that on the final settlement of his account he is to be charged with the amount of any debt due from him to the estate, as so much cash in hand, from the time it became due. And it can hardly be said that this is an unjust or unreasonable requirement. As an executor cannot sue himself, all resort to legal process for the collection of a debt due from him to the estate is cut off by his assuming that office. By a proceeding which the beneficiaries of the estate are powerless to prevent, he has deprived them of the ordinary processes of the law for enforcing the payment of his debt. Having voluntarily taken upon himself the right and duty to demand and receive, and the corresponding duty of paying, it is but a just and legal consequence of his own act that his debt should be conclusively presumed to have been paid and discharged. Every reason for this doctrine is strengthened when liability on the ground of the executor's insolvency is sought

to be evaded. That is a matter which the beneficiaries of the estate are entitled, under every principle of right and justice, to have determined by the ordinary processes of the law, in a proceeding where the debtor does not occupy the conflicting relations of a representative of the estate charged with the duty of diligence in its behalf, and a debtor whose interest it would be to avoid payment. An inquiry of that nature in the county court, sitting for the transaction of probate business, would necessarily be attended with innumerable difficulties, and would be an unsatisfactory and imperfect substitute for the remedies ordinarily afforded for the collection of debts. For the purpose of settling all these questions, and obviating the difficulties suggested, the statute has provided, in plain and unmistakable terms, that, if the debtor takes upon himself the administration of the estate, he shall be liable for any debt due from him, "as for so much money in his hands at the time" it became due and payable. Nor is the effect of this provision modified by those of sections 1176, 1177, Hill's Ann. Laws Or., that an executor is chargeable with all the property of the estate that may come into his possession, at the value of the appraisement contained in the inventory, and "shall not be accountable for the debts due the estate, if it appear that they remain uncollected without his fault." Debts due from the executor are by force of section 1117, in legal effect, transmuted into money in his hands, and cannot be classed with property of the estate coming into his hands, or with uncollected or uncollectible debts, within the meaning of the section referred to. McGaughey v. Jacoby, supra.

Whether the debt of an insolvent executor, converted by the statute into money, for the purpose of administration, stands on the same footing in regard to his sureties as if the executor had actually received so much money belonging to the estate, is a question not presented or decided by this appeal.

We are of the opinion that the executor was properly charged with the amount of the debt due from him to the estate, as so much money, and, as that is the only question for decision, the decree of the court below is affirmed.

(42 Or. 331)

LUCKEY v. LINCOLN COUNTY. (Supreme Court of Oregon. Nov. 3, 1902.) COSTS-WITNESS FEES ATTENDANCE FROM DISTANCE - MILEAGE NECESSITY OF ORAL EXAMINATION-SUFFICIENCY OF STATEMENT. 1. In order to secure the taxation as costs of the mileage of witnesses living beyond the reach of an ordinary subpoena, and who attend merely at the request of a party, it must appear, in conformity to Hill's Ann. Laws, § 795, authorizing a special subpoena under such circumstances, not only that their testimony

was material, but that an oral examination was "important and desirable."

2. Where objections to the taxation of witnesses' mileage as costs are filed on the ground that the witnesses lived beyond the reach of an ordinary subpoena, and attended merely at the request of the party, and that their oral examination was not important or desirable, the amended verified cost statement required to be filed by Hill's Ann. Laws, § 795, must, under its provisions, affirmatively allege that such examination was important and desirable, the circumstance that objection was taken on that ground being insufficient to let in proof of the fact.

Appeal from circuit court, Linn county; Geo. H. Burnett, Judge.

Action by G. F. Luckey, as administrator of the estate of L. A. S. Luckey, deceased, against Lincoln county. From an order retaxing costs, defendant appeals. Affirmed. J. R. Wyatt, for appellant. W. S. McFadden, for respondent.

WOLVERTON, J.

This is an appeal from the retaxation of costs by the circuit court. The sole question insisted upon here pertains to the taxation of the mileage of certain witnesses from Lincoln county, who attended the court sitting in Albany, Linn county, more than 20 miles distant from their places of residence, to testify as witnesses in behalf of the defendant, and at its request. The objections interposed to the taxation of such mileage were that the witnesses were not sworn or examined in such cause, nor was their oral testimony at any time important or desirable, or material in behalf of the defendant. The county, by its amended verified statement, set out the number of miles necessarily traveled; the number of days in attendance upon the court; that the witnesses attended at the defendant's request, and that their testimony was material, giving specific reasons why it was considered so; but did not make any averment relative to the importance or desirability of an oral examination. The trial court, as one of its conclusions of law, made the following finding, viz.: "In the absence of any showing whatever that the oral examination at the trial of this cause was important or desirable, the claim of the defendant for mileage for said witnesses, residing as they do more than twenty miles from the place of trial, is not well founded in law, and cannot be sustained or allowed;" and in pursuance thereof refused to tax such mileage as a disbursement recoverable by the defendant, and error is predicated upon the action of the court in this regard. Since the decision of this court, in Crawford v. Abraham, 2 Or. 163, it has been regarded as settled that, when objection has been made to the taxation of mileage of a witness living beyond the reach of an ordinary subpoena, and the attendance is procured simply by request of the party, the item must be sustained by a showing equivalent to that which is necessary under Hill's Ann. Laws Or. § 795, to

procure a special subpoena. Lumber Co. v. Garrett, 28 Or. 168, 42 Pac. 129; Perham v. Electric Co., 33 Or. 451, 53 Pac. 14, 24, 40 L. R. A. 799, 72 Am. St. Rep. 730; Burrows v. Balfour, 39 Or. 488, 65 Pac. 1062; and Spencer v. Peterson (Or.) 68 Pac. 1108. The showing required by the section referred to is that the testimony of the witness is material, and his oral examination important and desirable. In Burrows v. Balfour, supra, the sufficiency of the order indorsed upon a subpoena requiring the attendance of the witness, based upon an affidavit, couched in the language of the statute, that the testimony of the witness was material, and his oral examination important and desirable, was questioned, and it was held that the order was in the nature of a judgment predicated upon the showing thus made, and justified the taxation of double mileage. In the case at bar we have the question presented, unattended by the conclusive effect of any judgment, whether the amended verified statement must, in addition to showing the materiality of the testimony of the witnesses, also show that their oral examination was important and desirable. It is argued that, inasmuch as the obJections specified that the oral testimony was not at any time important or desirable, the question was sufficiently presented, and that it was unnecessary to make any affirmative allegation in the amended verified statement to sustain the item. The language of Mr. Justice Moore in Spencer v. Peterson, supra, answers the argument perfectly. He says: "This section [795], construed in the light of the rule announced in the case cited (Crawford v. Abraham), requires the prevailing party, if proper objection be made to his cost bill, to file an amended verified statement showing that the testimony of the witness, who had voluntarily come from his residence in another county, and more than twenty miles from the place of trial, was material, and also that his oral examination was important and necessary." The objections are designed to call specific attention to the items claimed to be wrongful or without authority of law, and, when interposed, the burden of filing an amended verified statement is cast upon the party filing the cost bill, if he would maintain it. Having the burden of proof, he must show by such statement all that is required by the statute, construed in the light of Crawford v. Abraham. So it is in the case at bar. In order to recover the item of mileage, it was incumbent upon the defendant to show by the amended verified statement that the testimony of the witnesses was not only material, but that their oral examination was Important and desirable. There being no showing whatever as to the importance and desirability of such oral examination, the defendant has not brought itself within the rule, and the judgment of the circuit court must be affirmed.

(27 Mont. 182)

In re NEWTON. (Supreme Court of Montana. Oct. 29, 1902.) ATTORNEYS-DISBARMENT-REINSTATEMENTAPPLICATION-SUFFICIENCY.

1. Where an attorney has been disbarred, an application for his reinstatement must be verified, and must set forth the facts touching the proceedings in disbarment, with the reasons why petitioner should be reinstated, and should comply in all respects with the rules applicable to the admission of attorneys to practice in the first instance.

Application by William Newton for reinstatement as an attorney. Application suspended.

BRANTLY, C. J. The petitioner was disbarred by order of this court on January 11, 1898; it being made to appear that he had theretofore been convicted of the crime of petit larceny in a justice's court of Silver Bow county. On June 27, 1901, he presented to this court his petition asking that the order of disbarment be vacated for reasons therein stated. This petition was denied, the court being of the opinion that the reasons stated therein were not sufficient to warrant the vacation of the order of disbarment. 69 Pac. 1131. On this day he has petitioned the court, through John N. Kirk, Esq., a member of the bar, that he be restored to the rights and privileges of a member of the bar. The court has examined the petition presented, and finds it insufficient to meet the requirements of the statutes and rules of this court, applicable to such cases, in several particulars; among others, in that it is not verified, and in that it fails to state whether any proceedings for disbarment of the petitioner or criminal charges have been instituted or prosecuted against him in any jurisdiction. The court is of the opinion that the petition in such cases should not only set forth the facts touching the proceedings in disbarment in this court, with reasons why the petitioner should be reinstated, but should also in all respects comply with the rules applicable to the admission of candidates to practice law in the first instance.

It is therefore ordered that the proceeding depend, with leave to said Newton on or be fore December 1, 1902, to file with the clerk and present to the court an amended petition in conformity with the statutes and rules of this court touching applications for admission to the bar, which shall contain such other pertinent matters as he may be advised should properly be embraced therein, and shall be duly verified by the oath of said Newton, and be accompanied by the statements, under oath, of those who may join in the prayer thereof, together with certificates of reputable members of the bar as to the moral standing and character of the petitioner in the community in which he re sides.

PIGOTT and MILBURN, JJ., concur.