In re Rice's Estate
| Decision Date | 11 June 1947 |
| Docket Number | 7029 |
| Citation | 111 Utah 428,182 P.2d 111 |
| Parties | In re RICE'S ESTATE. RICE v. RICE et al |
| Court | Utah Supreme Court |
Appeal from District Court, Second District, Davis County; John A Hendricks, Judge.
Proceeding in the matter of the estate of David L. Rice, deceased, on petition of Austin Rice against Erma Rice, executrix and trustee of said estate, and others, to set aside, on the ground of fraud, decree of distribution. From a judgment dismissing the petition, the petitioner appeals and the named defendant assigns cross-errors.
Judgment reversed and cause remanded for further proceedings not inconsistent with opinion.
Shirley P. Jones, of Salt Lake City, for appellant.
Jesse R. S. Budge, of Salt Lake City, for respondent.
Wolfe, J., not participating.
This case concerns the distribution of certain portions of the estate of David L. Rice, deceased, who died in Davis County, Utah, on February 14, 1945, leaving a will dated April 16, 1944. This will was admitted to probate April 7, 1945, and under the terms thereof, Erma Rice, daughter of deceased, was named executrix. All of the estate, with the exception of certain devises and legacies, only one of which is of importance in this action, was distributed to Erma
Rice as trustee for the heirs.
The particular devise with which this case is concerned, is that in favor of Austin Rice, son of deceased, brother of the executrix, and petitioner herein. This devise reads:
"I give and bequeath to my son Austin Rice the land, approximately 27 acres in Section 31, Township 3 North, Range 1 east, Salt Lake Meridian, now occupied by him, which shall be his full distributive share of my estate and he shall not have any other additional share or participate in any distribution thereof."
After having duly qualified and followed the appropriate statutory procedure, Erma Rice, on December 12, 1945, filed her final account and petition for distribution. Statutory requirements as to notice were complied with. In her petition the executrix prayed that the court distribute to Austin Rice, petitioner herein, "as his full and only distributive share of said decedent's estate" certain described real property. Descriptions of two tracts of land, one containing 24.71 acres and the other 3 acres more or less, were set forth in the petition, and it was made to appear that this was the land the deceased intended to convey to petitioner. The petition for distribution, however, failed to mention a certain 3.85 acres on which petitioner claims his barn housing his hay, farm implements, and cattle is located. The petition also failed to make any mention of any water rights appurtenant to this land. The decree of distribution, which was entered on the 26th day of December, 1945, decreed the property as described in the petition.
The petitioner herein did not discover the claimed discrepancy and so did nothing about it until some time during the month of August, 1946, when he became involved in a dispute with one of executrix' agents over the use of the water. He was then informed that he had not been decreed the water or the 3.85 acres of land that his barn was on. He thereupon, and within a reasonable time, filed his petition in the District Court of Davis County, Utah, praying for a correction of the decree of distribution. He alleged in substance that the petition for decree of distribution had not properly described the lands devised to him by his father and that it did not decree to him the water and water rights appurtenant to the land.
The executrix and trustee appeared in the action, demurred generally to the petition and specially demurred upon the ground that the court had no jurisdiction over the subject matter. The demurrer was sustained without any indication by the court as to whether its decision was based on either or both grounds. The court did, however, grant the petitioner ten days within which to file an amended petition.
On November 25, 1946, petitioner filed his amended petition, alleging in substance the following facts:
That the executrix in her petition for distribution submitted to the court a description of land purporting to be the property devised to petitioner by the terms of the will, and that court distributed the land as described in the petition. The land so decreed to the petitioner is not all of the land or property intended to be devised to him by his father. That the terms of the will provided that petitioner should be bequeathed the land "now occupied by him," and that the petitioner occupied other and additional land to that described in the decree. That the additional land, other than that described in the decree of distribution was the 3.85 acres of land across the road from that described in the decree, on which stood this petitioner's barn housing his hay, farm implements and cattle. That neither the petition for distribution nor the decree of distribution made any mention of water or water rights appurtenant to and a part of the land, and which had been appurtenant to and used by petitioner and his grantor for more than 44 years.
That the failure of the executrix to include the additional land and water rights in her petition for distribution was intentional and for the purpose of attempting to deceive the court and to defraud the petitioner. That after the death of the testator, David L. Rice, and before her appointment as executrix, Erma Rice went to the home of petitioner and told him she had read the will of their father and that said will devised to him the farm he was then occupying, which Erma Rice knew included the 3.85 acres now in dispute, as well as the water and water rights enjoyed and used by said lands. That petitioner and his wife went to the Courthouse at Farmington, Davis County, Utah, upon the day set for the hearing of the petition for distribution, December 26, 1945, and were met in the hallway outside of the courtroom by the executrix, Erma Rice, who advised them that it would be a waste of time for them to attend the hearing or to be present thereat, and that they did not need to do so because she had taken care of everything for them and that they would get the farm they then occupied as provided for in the will. Relying upon such representations of Erma Rice, the petitioner and his wife did not attend the hearing of the petition for distribution, and did not know the decree was to provide for less property than that occupied by petitioner. That the land bequeathed unto petitioner is of little or no value without water and without the disputed portion of land the remaining property is greatly depreciated. That the executrix has refused to permit the petitioner to use the water on the land, upon the claim and contention that the same was not intended to be bequeathed by the deceased, and was not included in the decree of distribution. That the land on which petitioner's barn is situated is shown on the records of Davis County as being in the name of Erma Rice, Trustee, and not in the name of the petitioner, notwithstanding the petitioner is the true owner of the same. That the water appurtenant to and used upon the lands aforementioned are not shown upon the records as having been conveyed with said lands, except insofar as the decree of distribution may be held to have effected such transfer.
To the above described amended petition of Austin Rice the executrix, Erma Rice, demurred generally and on the ground that the court was without jurisdiction in the matter. After a hearing the Trial Court sustained the general demurrer and dismissed the petition. No ruling appears in the record on the special demurrer to the court's jurisdiction. From such judgment, petitioner appeals.
In this appeal the appellant assigns error on the part of the court in sustaining the general demurrer to the amended petition, and dismissing the action without granting leave to amend. The respondent, in turn, assigns error in that the court erred in not sustaining the demurrer on the ground that the court had no jurisdiction of the subject matter of the action. These matters will be treated in the reverse order.
The question of the jurisdiction and powers of District Courts in this state have been before this court on numerous occasions and particularly with respect to the powers, rights, and remedies of a court when it is dealing with an action brought under the provisions of the Code of Civil Procedure, the Code of Criminal Procedure, or the Probate Code. There is little need to again discuss the extent of the jurisdiction granted to District Courts by the Constitution of the State of Utah and the statutes consistent therewith. That the District Courts have original jurisdiction in matters, civil, criminal, probate, and guardianship, is admitted. Where the parties in this action disagree is on the procedure and pleadings necessary to invoke the jurisdiction of the court and permit it to proceed with a trial of the action on the merits.
Mr. Justice Wolfe in a concurring opinion in the case of McLaren v. McLaren, 99 Utah 340, 106 P. 2d 766, collates the Utah cases discussing the nature and extent of probate and legal jurisdiction of District Courts. Since that case was decided, this court has passed on this same question in the following cases: In re Clift's Estate, 101 Utah 343, 122 P. 2d 196; In re Martin Estates, 109 Utah 131, 166 P. 2d 197; Nielson's Estate v. Nielson, 107 Utah 564, 155 P. 2d 968. Some of the cases touched on in the discussion by Mr. Justice Wolfe in the McLaren case will be referred to and the three later ones herein cited will be discussed.
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...275 N.W. 300 (1937) ; Hampshire v. Woolley , 72 Utah 106, 269 P. 135 (1928), overruled in part on other grounds, In re Rice's Estate , 111 Utah 428, 182 P.2d 111 (1947) ; 56 Am. Jur. 2d Motions, Rules, and Orders § 47 (2020).37 See, e.g., Sid Dillon Chevrolet v. Sullivan , 251 Neb. 722, 559......
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