Burns v. Smith

• Decision Date: 05 July 1898
• Citation: 53 P. 742,21 Mont. 251
• Parties: BURNS v. SMITH et al.
• Court: Montana Supreme Court

53 P. 742

21 Mont. 251

BURNS v. SMITH et al.

Supreme Court of Montana

July 5, 1898

Appeal from district court, Lewis and Clarke county; H. N. Blake Judge.

Suit by Mattie E. Burns against Mary S. Smith, administratrix, and Norman B. Holter, administrator, of the estate of James M Smith, deceased, and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Affirmed.

This is an action for the specific performance of a contract. The defendant Mary S. Smith is the surviving widow of James M Smith, and also his administratrix. Norman B. Holter is the administrator of said estate. The other defendants are the heirs at law of said James M. Smith, who died intestate in Lewis and Clarke county on the 4th day of February, 1896. The material allegations of the complaint, and which were found in favor of the plaintiff in the special findings of fact made by the jury, are substantially as follows: That about July 4, 1885, the plaintiff, at the solicitation of James M. Smith and Mary S. Smith, his wife, by an agreement made with the mother of plaintiff, went to live with the Smiths at their home. At that time plaintiff was 10 years old. The Smiths were then, and at all times have been, childless. Plaintiff went to live with them under the agreement and with the understanding that, if James M. Smith was pleased with and liked the plaintiff after she had lived in their home as their child for a reasonable time, he would adopt her as his own child, so that she, on his death, should receive a child's share of his estate, the same as if she had been his child born in lawful wedlock. That plaintiff, with such understanding, went to live with the Smiths, and so continued to live with them, rendering to them such obedience and performing such services as a child of 10 years commonly renders and performs for its own parents, and obeying the Smiths as if they were her natural parents. That after the plaintiff had lived with the Smiths for about one year, and the said James M. Smith had become fully satisfied with and liked the plaintiff, and, having no children of his own, entered into an agreement with the mother of the plaintiff, whereby, in consideration of said plaintiff, then a girl of 11 years of age, being surrendered to him, and in further consideration of such services as plaintiff would render him as his child, and the further consideration of the companionship of said plaintiff, he promised and agreed with the plaintiff's mother and the plaintiff that he would care for plaintiff as his own child, and adopt her, and further agreed that on his death she should receive a child's share of his estate. That in pursuance of said agreement the mother of the plaintiff then and there surrendered the care, custody, and control of said plaintiff to the said James M. Smith, and that he took her and placed her in his household as his child, and continued to contribute to her care, maintenance, and support as his child until her marriage, on January 19, 1895, and thereafter continued to recognize her as his child up to the time of his death. The complaint further alleges that the plaintiff performed all of the conditions of the said contract on her part, and yielded the obedience to the said James M. Smith and his wife due from a child to its parents, treating and regarding them the same as she would her natural parents, relying upon the said James M. Smith's declarations that she was his legally adopted child and heir; that she was known and recognized by the name of Mattie E. Smith, instead of her own name, Mattie E. Kates, and was introduced and declared by James M. Smith to be his adopted daughter and heir; that she called the Smiths "father" and "mother" while she lived with them; that she performed all the household duties such as a daughter usually performs for her own parents up to the time of her marriage, in January, 1895; that she was married to her husband at the home of, and with the full approbation of, said James M. Smith; that about July, 1886, a formal contract and deed of adoption was drawn up, at the special instance and request of said James M. Smith, whereby plaintiff was duly and legally declared to be adopted as the child and legal heir of said Smith, and that on his death she should receive a child's share of his estate; that said contract was signed by James M. Smith and the mother of the plaintiff, but that the same was never recorded; and plaintiff avers, on information and belief, that said deed of adoption has been destroyed by defendant Mary E. Smith, the surviving widow of James M. Smith. The complaint then alleges that plaintiff never knew that said deed of adoption was illegal and of no effect as a deed of adoption until informed by her counsel, after the death of said James M. Smith; that said Smith left an estate of about $55,000, and that the administrator, the surviving widow, administratrix, and the heirs at law of James M. Smith, deceased, claim to be entitled to all of the estate of said James M. Smith, and deny that plaintiff has any right or interest therein; that she presented her claim to the administrator and administratrix of said estate within the time prescribed by law; and that the same was entirely rejected. The plaintiff asks for a decree of the court establishing her rights to a child's share of the estate of James M. Smith, deceased, under and in accordance with the contract and agreement entered into as aforesaid, and that said contract, when so established, be enforced against said estate and the defendants herein, and that upon the distribution of the estate she be entitled to receive one-half thereof. The answer denies all the material allegations of the complaint. The case was tried with a jury, and findings of fact were submitted to them, covering, as stated above, the material allegations of the complaint. All of the findings were in favor of the plaintiff, and were all adopted by the court, and judgment rendered in accordance therewith. From the judgment and an order of the court overruling defendants' motion for a new trial, this appeal is taken.

Cullen, Day & Cullen and Sanders & Sanders, for appellants.

E. A. Carleton and B. P. Carpenter, for appellee.

PEMBERTON C.J. (after stating the facts).

The first question presented by this appeal is as to the jurisdiction of the trial court. Counsel for appellants contend that department 2 of the district court of Lewis and Clarke county, by the established rules of that court, is the court of probate of said county, and that, having reduced the estate of James M. Smith, deceased, to its possession by issuing letters of administration, and the estate being still in course of administration, that court had exclusive jurisdiction to determine the question of the heirs hip of the plaintiff. This case was commenced and tried in department 1 of the district court of said county. It is claimed that section 2840, Code Civ. Proc., gives exclusive jurisdiction to the probate court, or the district court sitting as a court of probate, to hear and determine this cause. This section, among other things, provides that "any person claiming to be heir to the deceased, or entitled to the distribution in whole or in part of an estate, may, at any time after the expiration of one year from the issuing of letters testamentary or of administration upon such estate, file a petition in the matter of such estate, praying the court or judge to ascertain and declare the rights of all persons to said estate, and all interests therein, and to whom distribution thereof should be made." And after requiring the court or judge to give notice of the filing of such petition to the persons interested in the estate, and to take the proper proof of service of such notice, the section further provides that "the court or judge shall thereupon acquire jurisdiction to ascertain and determine the heirs hip, ownership and interest of all parties in and to the property of said deceased." In support of the view that the district court, sitting as a court of probate, has exclusive jurisdiction to try and determine the right and title of parties claiming to be heirs of an estate, counsel rely largely upon In re Burton, 93 Cal. 459, 29 P. 36. It is claimed that our Code is borrowed from California, and that the California construction should prevail here. If we carefully examine In re Burton, we find the court, after holding the probate court may try and determine questions of heirs hip, uses this language in construing the statute quoted above: "But the provisions of the section are carefully limited to the ascertainment and determination of rights and interests claimed in privacy with the estates, and are not applicable to rights or titles claimed adversely to such estates." The question that confronts us here is, does the plaintiff claim to be an heir of the estate of the deceased? Or is not her claim adverse to the law? She is not an heir at law, nor does she claim under or through an heir of the estate. Whatever claim she has, we think, results and comes to her under and through the contract alleged to have been made with the deceased in his lifetime as set out in her complaint. But whether the plaintiff claims as an heir of the estate, or adversely thereto, we think is not of paramount importance in determining the question of jurisdiction here presented. The section relied upon does not expressly confer exclusive jurisdiction upon the district court, sitting as a court of probate, to try and determine the questions therein enumerated; nor do we think exclusive jurisdiction to do so can be implied from the language of the section. In discussing this question, Mr. Pomeroy, in section 1153, vol. 3, of his work on Equity Jurisprudence, says: "One...