the decree of the county court was reversed, and the claim of Casto was approved in the sum of $511.71. It was adjudged that Talkington as administrator de bonis non is entitled to an accounting against the sureties of the former administratrix; that he be allowed the amount of said claim, together with the attorney's fees, costs, and expenses, and his commissions as administrator, and judgment was directed against the sureties accordingly.

accounts due him, the only property he owned | case of Casto v. Murray, supra, and allege at the time of his death was a valuable stal- that the claim was not presented within six lion and race horse "Diablo," of the alleged months from the date of the notice to credvalue of $5,000. The horse required the con-itors, and that Casto had stated that Emma stant care and attention of a keeper, and at Murray had paid all the debts owing by Wilthe time Murray died was in the charge of liam Murray, deceased, at the time of his Sam Casto. Immediately after the death of death. For a statement of the account they Murray, and while Casto was still in charge allege: "Emma Murray, administratrix, debtof the horse, viz., about August 26, 1903, the or to said estate, to sale of horse, Diablo, said Emma Murray leased him to Casto for a $4000.00. Credit, to amount received by Emyear. Under such lease, Casto continued in ma Murray, as heir at law of William Murpossession of the horse, furnishing stable ray, deceased, $4000.00." They also asked room, feed, and care for him until the 26th that a final hearing be had upon the said day of January, 1904, when Mrs. Murray took account, and that the same be allowed, and the horse from his possession. Casto there- the claim of Casto disallowed; that the sureupon commenced an action of claim and de- ties be discharged and exonerated from furlivery against Mrs. Murray, alleging his right ther liability. A reply was filed to this anto possession under his lease. Thereafter swer and final account, and the cause was said Emma Murray applied to the county tried in the county court, upon which a decourt of Marion county for letters of admin- cree was rendered disallowing the claim of istration upon the estate of William Murray, Casto, dismissing the petition, and directing deceased, and letters were issued to her on that the sureties give notice of the filing of March 14, 1904; Ed. C. Herren and M. E. the final account and close the estate. TalkBecker being the sureties upon her under-ington appealed to the circuit court, in which taking as administratrix. Thereafter she answered in said replevin action, alleging title as administratrix to the horse, and repudiating her contract of lease with Casto on the ground that the contract was void, which resulted in a judgment in her favor. Casto v. Murray, 47 Or. 57, 81 Pac. 388, 883. Afterwards Emma Murray sold the horse for $4,000, and he was shipped to California. The sale was approved by the county court, though no order had been made authorizing said sale. The only debts against the estate John Bayne and John Carson, for appelother than the expenses of the last illness of decedent and the funeral and administration lants Herren and Becker. W. M. Kaiser, for reexpenses, which were all paid by Emma Mur-spondent Talkington. ray, were the claim of Casto and the expense respondent Casto. of closing the administration. On April 7, 1904, the administratrix gave due notice to creditors to present their claims against the estate. No semiannual nor final accounts were filed by her, and in the month of September, 1904, she removed to California and died there on October 5, 1905. On October 30, 1905, F. P. Talkington was appointed administrator de bonis non of the estate of William Murray, deceased, and thereupon said Casto presented to him a claim for services and expenses in his care of Diablo from July, 1903, to January 26, 1904, in the sum of $620, which the administrator indorsed "Approved," and thereupon this proceeding was commenced in the county court to require Herren and Becker, as sureties, to account for the property of the estate coming into the hands of Emma Murray as administratrix. By their answer Herren and Becker admit the allegations of the petition, except they deny that there are any debts of the estate unpaid, and allege affirmatively that but one claim has been presented against the estate, and that by Sam Casto, amounting to $620, and that the same is fraudulent and void, and that he is estopped to claim the same,. and

L. H. McMahon, for

EAKIN, J. (after stating the facts as above). The form of this proceeding is questioned for the first time in this court. Counsel for the sureties contend that there can be no action on the undertaking of an administrator until there has been a settlement of the account of the former administrator, which is not disputed. But this is a proceeding in the county court for such settlement and is not an action on the bond. However, the issues have been made and trial had upon the suggestion in the answer that, although a distribution was prematurely made, it was made to the heir, and therefore the sureties should not be held for the whole of the property of the estate, but only for such amount as would be necessary to pay the debts and expenses of administration. This being acquiesced in by all the parties as well as the lower courts is a waiver by the administrator de bonis non of an accounting of the whole estate, the sureties having tendered an issue as to the amount and validity of the claim of Casto for the purpose of determining whether there is any occasion for an ac counting, and, if so, for what amount. It

istrator in the settlement of the estate. Section 1217, B. & C. Comp. Although Casto's remedy was upon the personal liability of the administrator and not against the estate, yet there is an exception to this general rule as in case of a claim for funeral expenses or care of live stock, or in case of the insolvency of the administrator, to which might be added the removal of the administrator beyond the jurisdiction of the court. 11 A. & E. Enc. 937; Baker v. Baker, Bailey's Eq. (S.

of William Murray, deceased, care for the property of decedent, so far as necessary for its preservation, or cause it to be done, until the administrator was appointed. Casto v. Murray, 47 Or. 66, 81 Pac. 388, 883. And, if expense was incurred in the necessary care of the property before the appointment of the administrator, she was entitled to compensation therefor out of the estate. She was entitled to anticipate the administration and to do what was necessary to preserve the estate. Casto v. Murray, supra; Taylor v. Wo-C.) 165; In re Galland's Estate, 92 Cal. 293, burn, 130 Mass. 494. The appointment relates back to the death of decedent, legalizing acts done before her appointment as administratrix, provided they were done for the benefit of the estate. 11 A. & E. Enc. 908; White lock v. Bowery Savings Bank, 36 Hun (N. Y.) 460; Rowe v. Cockrell, Bailey's Eq. (S. C.) 126; Cook v. Cook, 24 S. C. 206.

28 Pac. 287; Donald v. McWhorter, 44 Miss. 124; Farley v. Hord, 45 Miss. 96. And in such a case the creditor may be allowed to take the place of the administrator and be paid out of the estate to the same extent.

Casto was tried out as incident to the accounting. The sureties tendered the issue and are bound by the result.

We have examined the evidence as to the amount and character of the service rendered by Casto in the care of the horse, as well as the value thereof, and find that it justifies the findings of the circuit court thereon.

The sureties by their brief contend for the first time that this proceeding is at law, and that they were entitled to a trial by jury in In this case Casto rendered the service up- the circuit court. But it is too late to raise on a contract of lease made with the heir, that question. Furthermore, what has been but the lease, not being for the benefit of the es- said as to the form of the proceeding applies tate, was void as against it. Casto v. Murray, to this objection also. The proceeding was 47 Or. 57, 81 Pac. 388, 883; Dutcher v. Dutch-not at law, and the validity of the claim of er, 88 Hun (N. Y.) 221, 34 N. Y. Supp. 653. Casto was not a stranger nor an intermeddler in caring for the horse. His services will be deemed to have been rendered at the request of Emma Murray for the benefit of the estate. As said in Gove v. Island City M. & M. Co., 19 Or. 363, 24 Pac. 521, when one performs service for another on a special contract, and for any reason except voluntary abandonment fails The circuit court, after settling the account to fully comply with his contract, and the of the former administratrix as to the amount service has been of value to him for whom of money necessary to pay the debts due it was rendered, he may recover the reason- from the estate, directed judgment against able value of such service. Steeples v. Newton, the sureties, Herren and Becker, for the 7 Or. 110, 33 Am. Rep. 705; Todd v. Hunting- amount thereof. This, we think, was error. ton, 13 Or. 9, 4 Pac. 295. And he was entitled to This is not an action on the undertaking, but compensation from Emma Murray for the val- a proceeding to settle the account of the forue of his services, and she was entitled to be mer administratrix, to which the sureties are reimbursed therefor out of the estate by the necessary parties. Herren's Estate, 40 Or. administrator when appointed. 11 A. & E. Enc. 90, 66 Pac. 688. The probate court does not 1234; Roberts v. Rogers, 28 Miss. 152, 61 Am. have general equitable jurisdiction with powDec. 542; Branham v. Commonwealth, 7 J. J. er to grant full relief, but only such as relates Marsh. (Ky.) 190; Todd v. Martin, 104 Cal. to the administration of the estate. It has xviii, 37 Pac. 872. However, the claim of no jurisdiction of an action on the undertaka creditor arising upon the contract of the ing, and no such relief is asked. Therefore administrator is enforceable against him per- the decree of the lower court will be reversed sonally and not ordinarily against the es- in so far as it is a personal judgment against tate, and, if a proper item of expense, will Herren and Becker. It is further adjudged be allowed to the administrator out of the and decreed that at the time of her death estate. Sturgis v. Sturgis, 51 Or. 18, 93 Pac. there was $4,000 in money, the property of 696, 15 L. R. A. (N. S.) 1034. The statute the estate of William Murray, deceased, unrequiring claims to be presented to the ad- accounted for by Emma Murray as adminisministrator within six months from the pub- tratrix of said estate; that, as suggested lication of the notice to creditors only post- herein, she being the sole heir, the sureties on pones claims not presented within that time her undertaking should not be called upon to until the payment of those so presented. Sec- account for more than sufficient to pay the tion 1159, B. & C. Comp. But the status of debts and expenses of administration; that a liability upon the administrator's own con- the debts of the estate established in this tract for the benefit of the estate is very dif- proceeding amount to $511.71, with interest ferent from that of a debt created by the de- at 6 per cent. per annum from October 31, cedent in his lifetime, and need not be pre- 1905. It is further ordered that the cause sented to the estate at all by the creditor, be- be remanded to the circuit court, and by it ing a preferred claim in favor of the admin- to the county court, with direction to settle

the account of the former administratrix by | the interests and business of said agreement; adjudging that the sum of $4,000 of the said estate that came into her hands is due the estate thereon; that it ascertain the amount of money that will be required to pay the debts of said estate and the expense of administration, which shall be the amount to be collected upon the undertaking of the said Emma Murray, administratrix, in case the remainder of said $4,000 has been properly distributed to the heir; that the matter of the attorney's fees allowed by the circuit court to the administrator de bonis non is not in any way involved in this proceeding. It is allowable by the county court as other items of expense are allowed, and not as an incident of this proceeding. The appellants will recover costs and disbursements in this court, and the respondents will recover costs and disbursements in the circuit and county courts.

(55 Or. 587)

DRAKE v. RANKIN.
(Supreme Court of Oregon. Feb. 23, 1910.)
PARTNERSHIP (§ 330*)-DISMISSAL-Grounds
-ISSUES AND PROOF.

Where plaintiff sued for an accounting of an alleged general partnership between himself and defendant, and the proof at most showed a special or quasi partnership consisting of several independent purchases and sales of land, defendant was entitled to a dismissal, but without prejudice.

[Ed. Note-For other cases, see Partnership, Dec. Dig. § 330.*]

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein, Judge.

Action by J. Francis Drake against M. B. Rankin. Judgment for defendant, and plaintiff appeals. Modified and affirmed.

that the business of said copartnership has been continuously prosecuted and conducted under the management and direction of defendant from said beginning thereof to the present time, and that said agreement has not been abrogated, terminated, nor annulled, and is still existing; that defendant at all times has had and still has possession of all the books, accounts, securities, writings, and papers of and concerning said business; that said business has been successful and large profits have accrued therein and therefrom, amounting to a large sum of money, aggre gating, as plaintiff is informed, and believes, the sum of $200,000 in addition to and exclusive of other interests and property in land, land scrip, and securities, the exact value, character, and extent of which plaintiff has been unable to ascertain, and cannot at this time particularly set forth; plaintiff avers, upon information and belief, that the value thereof exceeds $100,000. The answer put in issue the matters above alleged. The court by consent of counsel announced that testimony would first be taken to determine whether a partnership existed, and, if found to exist, further testimony would be taken in order to state the account. After hearing the testimony, the court found that no general partnership existed and dismissed the suit, from which decision plaintiff appeals.

William O. Bristol (Frank V. Drake, on the brief), for appellant. G. W. Stapleton (Coovert & Stapleton, on the brief), for respondent.

above). The allegations of the complaint set out a general partnership to engage in buying and selling and dealing in land. It is true, the words "general partnership" are not used, but the language used necessarily imports the same. The evidence adduced shows several distinct and independent ventures; each particular tract and venture being independent of any other and arising out of a separate and distinct agreement. There was an agreement to buy certain lands in Wahkiakum county, Wash., which appears to have been closed up by a sale of the property and an arrangement made to the apparent satisfaction of all parties at the time, though plaintiff now claims that there was some money advanced by him for taxes which has not been accounted for. There was another agreement in regard to purchasing a tract of 320 acres of state land in the Silverton district which it appears plaintiff actually applied for and gave Rankin $100 to make a payment on, but it seems that other parties contested the right of plaintiff and his associates, and they were defeated. Other tracts were examined from

MCBRIDE, J. (after stating the facts as

This suit was brought by plaintiff against defendant to compel an accounting in relation to a certain alleged partnership business between them. The complaint, so far as it is material to the questions involved, states that on June 12, 1896, at Portland, Or., plaintiff and defendant made and entered into a mutual agreement then and there made by and between them to enter into and engage in the business of dealing in, buying, and selling lands for their mutual benefit and profit; that plaintiff should and would pay and contribute moneys to and for the uses and purposes of said business; that defendant should and would conduct and have control thereof; and that the profits accruing therefrom should be divided by and between said parties equally, share and share alike; that, pursuant to said agreement, plaintiff at divers times, and when thereto requested by defendant, contributed and paid into said copartnership business various sums of money, to the amount of over $3,000, and from time to time rendered services in promoting

time to time, at the suggestion of Rankin or [ of 1896, when he went to Europe and returned plaintiff, but there is little evidence that any of these resulted in getting a title to any land or in anything else than loss of the money put into them.

For other cases see same topie and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

mained in the drawer until after his wife's | ership of the property, and for that purpose death; that, he never delivered them to his wife, and did not deliver the property nor any part of it to her; that he made the deed and bill of sale to save her the trouble of administration; and that his wife said she hoped she never would have to use them, but would in case of his death.