Connolly v. Probate Court in and for Kootenai County

• Citation: 25 Idaho 35,136 P. 205
• Parties: LAWRENCE F. CONNOLLY, JOHN J. CONNOLLY, WILLIAM CONNOLLY and ELLEN F. UDELL, Plaintiffs, v. THE PROBATE COURT IN AND FOR THE COUNTY OF KOOTENAI, and Hon. BERT A. REED, Judge of Said Court, Defendants
• Decision Date: 25 October 1913
• Court: United States State Supreme Court of Idaho

136 P. 205

25 Idaho 35

LAWRENCE F. CONNOLLY, JOHN J. CONNOLLY, WILLIAM CONNOLLY and ELLEN F. UDELL, Plaintiffs, v. THE PROBATE COURT IN AND FOR THE COUNTY OF KOOTENAI, and Hon. BERT A. REED, Judge of Said Court, Defendants

Supreme Court of Idaho

October 25, 1913

PROBATE COURT-JURISDICTION OF-DESCENT AND DISTRIBUTION-NONRESIDENT ALIEN HEIR - FAILURE TO CLAIM PROPERTY-RESIDENT HEIRS-RIGHT TO INHERIT PROPERTY-ESCHEAT-RIGHT OF SUCCESSION.

1. Held, that the probate court was without jurisdiction to sustain a motion or application for the setting aside of the decree of distribution in the Corbett estate matter, under the facts presented by the petition or motion.

2. Held, that it appears from the record that the probate court had jurisdiction to probate the estate of said Corbett and to enter a decree of distribution thereof, and that such decree not having been appealed from within the time provided by law, said decree of distribution became conclusive as to the rights of all heirs and claimants to said estate.

3. In the probation and distribution of said estate, the notices required by statute having been given, said probate court acquired jurisdiction over all persons for the purpose of determining their rights to any portion of said estate; and every person who claimed any right or interest therein was required to appear and present his claim to said court for determination.

4. The action of the court in probating an estate is equally conclusive (subject to reversal or modification on appeal) upon all parties, whether they appear and present their claims or not, and as conclusive as if they had presented their claims and the court had disallowed them.

5. Probate proceedings in the settlement of estates are in the nature of proceedings in rem, and upon the statutory notices being given, all the world is charged with notice.

6. Under the provisions of sec. 4831, Rev. Codes, the decree of a probate court in probate matters is made appealable.

7. The probate court is not given jurisdiction under the laws of this state to set aside its decree of distribution on application made years after the entry of such decree.

8. Under the provisions of sec. 20, art. 5, of the state constitution, district courts are given original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law, and if the probate court errs in deciding probate matters, an appeal is provided to the district court to correct such errors.

9. After the expiration of the term at which a judgment is entered by the probate court, the court loses jurisdiction thereof and it becomes final, and the court no longer has the power to vacate, modify or set aside such judgment except under the provisions of sec. 4229, Rev. Codes.

10. Under the provisions of sec. 5715, Rev. Codes, resident aliens may take equally with citizens in all cases, by succession, but no nonresident alien can take by succession unless he appear and claim such succession within five years of the death of decedent to whom he claims succession.

11. Under the provisions of sec. 5716, Rev. Codes, when succession is not claimed as provided by said sec. 5715, the property of the deceased, except real estate, may be reduced to the possession of the state to be disposed of as provided by sec. 5716.

12. A nonresident alien cannot by failure to make application to succeed to an estate as provided by law deprive the resident heirs of the right to succeed thereto.

13. Under the provisions of sec. 5700, Rev. Codes, succession is the coming in of another to take the property of one who dies without disposing of it by will.

14 Sec. 5701, Rev. Codes, provides that property, both real and personal, of one who dies without disposing of it by will passes to the heirs of the intestate subject to the control of the probate court, and sec. 5702 provides the order of succession.

15. Held, that the Connollys and Udell, being first cousins of the said deceased and resident citizens of the United States are heirs of the deceased.

16. When there are no heirs who claim the estate, then, and then only, does such property escheat to the state.

Original application to this court for a writ of prohibition directed to the probate judge of Kootenai county to restrain and prevent him from considering the petition of the state of Idaho filed in the matter of the estate of John Corbett deceased. Alternative writ issued, and after hearing the peremptory writ was granted and the court or judge prohibited from proceeding further in said matter.

Peremptory writ issued. Costs awarded to the plaintiffs.

C. W. Beale and C. L. Heitman, for Plaintiffs.

The probate court had jurisdiction of the probating of the estate with the power to determine who were the heirs of John Corbett, who were entitled to succeed to his estate, and what their respective interests therein were; having determined these matters and having entered its decree of distribution thereon, that became final at the end of the month of August, 1909, and conclusive as to the rights of all heirs and claimants to said estate. (Miller v. Mitcham, 21 Idaho 741, 123 P. 941; Wm. Hill Co. v. Lawler, 116 Cal. 359, 68 Am. St. 27, 48 P. 323; Goodrich v. Ferris, 214 U.S. 71, 29 S.Ct. 580, 53 L.Ed. 914; Cunha v. Hughes, 122 Cal. 111, 54 P. 535; Williams v. Marx, 124 Cal. 22, 56 P. 603; Smith v. Vandepeer, 3 Cal.App. 300, 85 P. 136; Mulcahey v. Dow, 131 Cal. 73, 63 P. 158; State v. O'Day, 41 Ore. 495, 69 P. 542.)

Probate court proceedings are proceedings in rem, to which all the world are party and charged with notice. (Clark v. Rossier, 10 Idaho 348, 359, 78 P. 358, 3 Ann. Cas. 231.)

The state does not come in by way of succession but only in the event of the absence of all who are entitled to come in by succession. (In re Miner's Estate, 143 Cal. 194, 76 P. 968.)

"If the immediate heirs are not able to succeed to the estate, as in the case of aliens at common law, yet if there be any persons legally qualified to do so, the estate will pass to them and not escheat." (16 Cyc. 550; Jackson v. Jackson, 7 Johns. (N. Y.) 214; Orr v. Hodgson, 4 Wheat. (U.S.) 453, 4 L.Ed. 613; Wunderle v. Wunderle, 144 Ill. 40, 33 N.E. 195, 201, 19 L. R. A. 84.)

The allegations of the petition of the attorney general do not, under the decisions of this court, constitute fraud against anybody. (Abrams v. White, 11 Idaho 497, 83 P. 602; Nelson v. Hudgel, 23 Idaho 327, 130 P. 85.)

After the term has ended, all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify or correct them; and if errors exist, they can only be corrected by such proceeding by a writ of error or appeal as may be allowed in a court which by law can review the decision. (1 Black on Judgments, p. 306; Brackett v. Banegas, 99 Cal. 623, 34 P. 344; Dean v. Superior Court, 63 Cal. 473; Estate of Hudson, 63 Cal. 454.)

"Where statutes authorize the courts to vacate or set aside judgments, on certain enumerated grounds, within a prescribed time from the rendition of the judgment, the power of the court over the judgment absolutely ceases upon the expiration of such time, and thereafter it has no discretion, or ever jurisdiction, to grant relief by vacating or modifying the judgment." (23 Cyc. 902; Bunnell & Eno etc. Co. v. Curtis, 5 Idaho 652, 51 P. 767.)

In the absence of an affidavit and showing of merit or mistake, inadvertence, surprise or excusable neglect, the decree of distribution should not and could not be set aside. (Holzeman & Co. v. Henneberry, 11 Idaho 428, 83 P. 497; Hall v. Whittier, 20 Idaho 120, 116 P. 1031.)

J. H. Peterson, Attorney General, R. L. Black, Assistant to Attorney General, Whitla & Nelson and Elder & Elder, for Defendant.

The inherent power of the court to set aside a judgment obtained through fraud, deception or collusion may be exercised after the expiration of the term, and the statute regulating the time within which application to vacate judgments must be made does not cover the case of fraudulent judgments. (23 Cyc. 907, 917; Furman v. Furman, 153 N.Y. 309, 60 Am. St. 629, 47 N.E. 577; Sullivan v. Andoe, 6 F. 641, 4 Hughes, 290; In re O'Neill's Estate, 90 Wis. 480, 63 N.W. 1042.)

Beyond the methods provided by statute, courts possess inherent powers, as has been said, to an almost unlimited extent to redress wrongs by modifying or setting aside judgments obtained by fraud or mistake. (Freeman on Judgments, secs. 99, 334; Morrill v. Morrill, 20 Ore. 96, 23 Am. St. 101, 25 P. 362, 11 L. R. A. 155; 2 Pomeroy's Eq. Jur., sec. 919.)

The petition for distribution must place before the probate court sufficient jurisdictional facts upon which that court can make a valid order. There was never such a petition filed in this case showing that the Connollys were the sole and surviving heirs of John Corbett, deceased, and the pretended order of distribution does not make such finding.

The principles of equity and justice demand that some court must have jurisdiction of such matter, and if it were not statutory and constitutional in this state for a probate court to possess such power, then the broad and inherent power of every court of record at common law would give the probate court of Kootenai county power to review these proceedings. (Foreman v. Carter, 9 Kan. 674; Hanson v. Walcott, 19 Kan. 207; United States v Walker, 109 U.S. 258, 3 S.Ct. 277, 27 L.Ed. 927; Thomas v. American etc. Co., 47 F. 550, 12 L. R. A. 681; Ladd v. Stevenson, 112 N.Y. 325, 8 Am. St. 748, 19 N.E. 842; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Gilbreadth v. Teufel, 15 N.D. 152, 107 N.W. 49; Shumake v. Shumake, 17 Idaho 649, 107 P. 42; Kern v. Morgan, 11 Idaho 572, 83...