The opinion
Petition for rehearing denied April 18, 1939
On Petition for Rehearing
( 89 P. (2d) 592 )
BELT, J.
The court confesses error in holding that this proceeding was an action at law and that the findings of the lower court were conclusive if supported by any substantial evidence. We are convinced, upon reconsideration, that, since the administration of the estate was pending in the probate court, the proceeding is in equity and, on appeal, this court is not bound by the findings of the trial court, although the same are persuasive. In making such confession of error, about the only consolation we have is that counsel seem to have been equally confused.
We think the proceeding is governed by § 11-1201, Oregon Code Supplement 1935, which provides as follows:
“When any person shall die intestate without heirs, leaving any real, personal or mixed property, interest or estate in this state, the same shall escheat to, and become the property of the state and clear proceeds derived therefrom shall be paid into and become a part of the common school fund of this state and be loaned or invested by the state land board, as provided by law. The county court, before whom any probate matter is pending, shall determine whether there are any legal heirs to said estate, and if it be determined by said court that there are no legal heirs thereto, said court shall order the administrator of said estate to serve upon the said state land board a true copy of the order of court directing that said proceeds shall escheat,
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together with a copy of the final account in said estate. The said state land hoard shall have three (3) weeks from the date of service upon it of said copy of said final account in which to file its objections thereto, and after said final account has been approved by the court said administrator immediately shall pay over to said state treasurer all of such proceeds, and said treasurer shall credit the same to the common school fund as other moneys received from escheats. Such administrator and his bondsmen shall be liable for the payment of such moneys to the state treasurer; provided, however, that nothing in this act shall be construed as repealing any of the provisions of section 11-1221.”
It is not, as contended by counsel for the State Land Board, a suit to determine who are heirs to an estate, as provided in §§ 11-901 to 11-906, inclusive, Oregon Code 1930. The State Land Board, in the probate proceeding, asserted that there were no heirs. It was proper for it to appear in the probate proceedings and make such contention for the purpose of having the “clear proceeds” of the estate escheat to the State. In such proceeding it is provided, by virtue of § 11-1201, Oregon Code Supplement 1935, that the court, in the event of finding no legal heirs, is authorized to direct the administrator to transmit the “clear proceeds” of the estate to the state treasurer. We are not dealing with a contest between parties asserting that they are legal heirs.
The amendment (Ch. 191, § 1, Laws of Oregon 1915) was made subsequent to the decision in
State v. McDonald,
55 Or. 419 , 103 P. 512 , 104 P. 967 , 972, 106 P. 444 . Hence such decision is not in point.
Since this is an equitable proceeding, the cause is heard de novo in this court. A great deal of time has been given to a consideration of the voluminous record in this case and we still adhere to the conclusion reached
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on original hearing — that the defendants are entitled to prevail.
We think it is established by the greater weight of the evidence that there was a ceremonial marriage and that Arthur W. Wakefield was born in lawful wedlock. Much space is devoted in the brief of appellant in support of the contention that the evidence does not show a common-law marriage, but we submit the defendants are relying upon a- ceremonial marriage. Hence such argument is not pertinent to the issues.
Unless the testimony of Emily A. Moore is absolutely false concerning the marriage of Theodore Pleasant and Anna C. Wakefield, as related to her by her mother, the decree of the lower court should be affirmed. The trial court, who saw and heard her testify, believed that she was telling the truth. We concur in such finding. It is not necessary to repeat what has been said concerning the presumption in favor of the validity of the marriage.
It follows that the decree is affirmed. Defendants are entitled to costs and disbursements.
The petition for rehearing is denied.
Raíto, C. J., and Bailey and Lusk, JJ., concur.