Masters v. Bissett , 102 Or. App. 289 ( 1990 )

BUTTLER, P. J.

In their petition for review, which we treat as a petition for reconsideration, ORAP 9.15, grandchildren contend that they had standing to claim damages for diminution of their grandmother’s estate by excessive and improper expenses incurred by defendant trustee in what is referred to by the parties as the “Anderson matter.” In a footnote, we stated that that contention was neither pleaded nor litigated in the trial court. Masters v. Bissett (A41367)(A44881), 101 Or App 163, 174 n 8, 790 P2d 16 (1990). On reconsideration, we conclude that the issue appears to have been litigated in the trial court.

For purposes of this opinion, we assume, without deciding, that grandchildren have standing. However, they have no right to relief, because their grandmother was a party to the lawsuit against Anderson, and whatever reduction to her estate that occurred as a result of the expenses incurred in the Anderson matter was with her consent and participation.

Petition for reconsideration allowed; former opinion modified and adhered to as modified.