In re Mcfarland's Estate

• Decision Date: 03 March 1891
• Citation: 10 Mont. 445
• Parties: In re McFARLAND'S ESTATE.
• Court: Montana Supreme Court

10 Mont. 445

In re McFARLAND'S ESTATE.

Supreme Court of Montana.

March 3, 1891

Appeal from district court, Deer Lodge county; D. M. DURFEE, Judge.

Forbis & Forbis, for appellant

Thompson Campbell and Robinson & Stapleton, for respondents.

HARWOOD, J.

The appeal herein is prosecuted on behalf of Hannah De Long, and for other persons claiming to be heirs at law of Elizabeth McFarland, deceased. Appeal is taken “from an order or decree” of the district court of the third judicial district, directing the distribution of the estate of deceased to Wilbur N. Aylesworth, and to the state of David H. McFarland, deceased. It appears by the record that said order or decree of distribution was made and entered February 8, 1890, and that appeal therefrom was taken January 20, 1891. Said distributees named in said order now appear by counsel, and move the dismissal of said appeal, on the ground that the same was not taken within the time required by law in such cases.

It is contended in support of the motion that the time for taking an appeal in the matter here involved is limited to 60 days, under the provisions of sections 324 and 325, Prob. Prac. Act. On the other hand, counsel for appellants contend, in opposition to said motion, that under the new system of judiciary, and the jurisdiction thereof, established by the constitution, an appeal in the matter at bar should be taken under the provisions of chapters 1, 2, tit. 11, Code Civil Proc.; and that the time within which the same must be taken is prescribed by subdivision 1, § 421, Code Civil Proc., and is limited to one year in case the appeal is from the judgment. It is further contended by appellants' counsel that sections 324, 325, Prob. Prac. Act, in so far as the same provides for an appeal directly from certain orders and decrees of the probate court to the supreme court, are null and void, and have no force as statutes of this state, for the reason that when enacted, in 1887, the provisions thereof were contrary to the laws of the United States organizing the territory of Montana, and applying thereto; and hence, being invalid as laws of the territory, the same did not become laws of the state of Montana by virtue of the constitutional provisions that “all laws enacted by the legislative assembly of the territory of Montana, and in force at the time the state shall be admitted into the Union, and not inconsistent with this constitution, or the constitution or laws of the United States of America, shall be and remain in full force as the laws of the state, until altered or repealed, or until they expire by their own limitations. Const, Schedule, § 1. This motion raises questions of much interest and importance, and fraught with some difficulty in the solution thereof. If sections 324, 325, Prob. Prac. Act, are in force as statutes of this state, the provisions thereof sustain the propositions asserted in favor of the motion before us, and this appeal should be dismissed. If, however, for any cause of invalidity, said sections were not in force as statutes of the territory, the same cannot be statutes of the state; because the enabling act of congress (section 24) and our constitution (Schedule, § 1) both provide that the laws of the territory in force at the time the state should be admitted into the union, and not inconsistent with the constitution and laws of the United States, or our state constitution, should remain in force, as the laws of the state, until otherwise provided. We therefore address our inquiry at once to the question of the validity of said sections 324 and 325 of the probate practice act. Said sections, providing for an appeal directly from the probate to the supreme court, were passed subject to the organic law governing the territory of Montana in 1887, and were valid or null, by virtue of that law. The organic act of the territory of Montana (section 9) provides “that the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. *** The jurisdiction of the several courts herein provided for, both appellate and original, and that of probate courts, and of justices of the peace, shall be limited by law.” Again, section 1866, Rev. St. U. S., provides: “The jurisdiction, both appellate and original, of the court provided for in section 1907 and 1908 shall be limited by law.” Section 1907 provides: “The judicial power in *** Montana shall be vested in a supreme court, district courts, probate courts, and justices of the peace.” Section 1932, Rev. St. U. S., provides: “The probate courts of the territory of Montana, in their respective counties, in addition to their probate jurisdiction, are authorized to hear and determine civil causes wherein the damage or debt claimed does not exceed five hundred dollars, and such criminal cases arising under the laws of the territory as do not require the intervention of a grand jury; but they shall not have jurisdiction of any matter in controversy when the title or right to the peaceable possession of land may be in dispute, or of chancery or divorce causes; and in all cases an appeal may be taken from any order, judgment, or decree of the probate courts to the district courts.” Section 1869, Rev. St. U. S., defines the appellate jurisdiction of the supreme court of the territory of Montana as follows: “Writs of error, bills of exception, and appeals shall be allowed, in all cases, from the final decisions of the district courts to the supreme court of all the territories respectively, under such regulations as may be prescribed by law.”

We think it is palpable, without argument, that where the organic law provided that the jurisdiction of the courts of the territory, both appellate and original, shall be limited by law, and that, “in all cases,” appeals to the district courts should lie “from any order, judgment, or decree of the probate courts;” and, further, that the appellate jurisdiction of the supreme court should be of appeals “from final decisions of the district courts,”—a law passed by the legislative assembly, governed by such fundamental provisions, directing the course of appeals otherwise, is void and of no effect, in so far as it prescribes such other course of appeals. This conclusion would be reached by applying either of two familiar maxims,— expressio unius est. exclusio alterius; or, expressum facit cessare tacitum. Co. Litt. 210 a; Broom, Leg. Max. 226. These maxims are applicable to the interpretation of statutes which expressly prescribe the method to be pursued, or the conditions governing the subject for it is the common understanding that the expression of such method of conditions manifests an intention to exclude all that might otherwise be implied, unless the contrary intention clearly appears in the instrument. It should be remembered that the provision of section 324, Prob. Prac. Act, for an appeal from the probate to the supreme court, as found in the present volume of Compiled Statutes, is not found in the Revised Statutes of 1879, preceding the present volume. The same section, as found in the Revised Status of 1879, provides that such appeal should be taken from the probate to the district court, and conformed to the provisions of the organic law above reviewed. An inspection of the original act, which became the present volume of Compiled Statutes, will show that the change crept into the statute, not by design on the part of the compiler, but by inadvertently compiling that portion of the act from a publication which did not contain a correct print of the statute as it then, and had for a long time, existed. The statutes comprised in said sections 324, 325, Prob. Prac. Act, are not the only statutes providing for appeals from the orders, judgments, and decrees of the probate courts. Chapter 3, tit. 11, p. 180, Comp. St., is entirely devoted to the subject of appeals from the probate to the district courts; and the same orders and decrees in probate matters are there made appealable to the district courts, which, by section 324 of the probate practice act, are made appealable directly from the probate to the supreme court. It is further provided in section 699, Code Civil Proc., that “the jurisdiction of the district court shall be original and appellate.” Section 701, Code Civil Proc., provides that “the appellate jurisdiction of these [district] courts shall extend to hearing upon appeal an order or judgment of a probate court or justice of the peace, in the cases provided by law.” Section 607, Code Civil Proc., provides: “The supreme court shall have appellate jurisdiction in all cases tried in the district courts.” Under the territorial system, a party feeling aggrieved by the decision of the probate court, in a matter like that in the case at bar, could carry the question ultimately to the supreme court. But such question had to come to the supreme court by appeal from the final determination thereof in the district court. The jurisdiction and practice of the district court, in such cases, as well as the manner of appealing from the final determination by that court to the supreme court, is ably elucidated by Chief Justice WADE in Broad water v. Richards, 4 Mont, 52, 80, 2 Pac. Rep. 544, 546.

The foregoing inquiry into the conditions which governed the practice under the old system concerns the question before us, not only in order to find whether or not sections 324, 325, Prob. Prac. Act, are valid statutes of the state, by virtue of having been valid statutes of the territory, but also as shedding some light upon the practice to be pursued in the appeal from judgments, orders, and decrees of the district courts, in probate matters, under the new conditions inagurated by the adoption of our state constitution. It cannot yet be said, in respect to our system of laws: “Old things are passed away; behold, all things are become new.” While we have a new judiciary,...