In re Carlson's Estate, 149 Or. 314

Summary

The Oregon Supreme Court considered whether Axel M. Green was made a party in his capacity as executor to a proceeding contesting the probate of Carl A. Carlson’s will. The court held that the petition, its allegations, the order directing citation, and service within one year sufficiently established Green’s status as a party executor, reversed the dismissal, and remanded the matter for further proceedings.

Holdings

1. A party's capacity is determined from the allegations of the pleading and the record as a whole, not from the title alone. Naming Green in the title, alleging that he was the executor and should be removed and required to account, and directing citation to issue and be served upon him as executor made him a defendant in his representative capacity.
2. The contest was instituted within one year after probate because Green was served with the petition and citation in his capacity as executor on April 16, 1934, less than one year after the April 18, 1933 probate order.
3. The court did not decide whether section 11-207 applies to proceedings under section 11-216 because the contest was timely even under the one-year limitation.

Questions Presented

1. Whether Axel M. Green was made a defendant in his capacity as executor when the petition named him, the body of the petition alleged that he was executor and sought his removal and an accounting, and the citation directed service upon the executor.
2. Whether service of the petition and citation on Green within one year after probate commenced the will contest within the statutory limitation period.
3. Whether the Oregon Supreme Court needed to decide whether the one-year limitation in section 11-207 applied to proceedings under section 11-216 involving a later-discovered will.

Disposition

reversed_and_remanded