Kline v. Shoup
| Decision Date | 08 November 1923 |
| Citation | 226 P. 729,38 Idaho 202 |
| Parties | FRANK J. KLINE, EDWARD KLINE, JOSEPH J. KLINE, LOUISE TORMEY KLINE, LILLIAN A. KLINE, RENA A. SOUTHMAYD and MARY TORMEY KLINE, Heirs of JOHN. TORMEY, Deceased, Appellants, v. W. H. SHOUP, as Administrator of the Estate of JOHN TORMEY, Deceased, and F. S. WRIGHT, Respondents |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.
Appeal to the district court from an order of the probate court vacating certain of its previous orders concerning the probate of an estate. Order of the probate court reversed by the district court. Judgment of the district court in part reversed and in part sustained.
Judgment of the district court affirmed as to Louise Tormey Kline, Lillian A. Kline and Mary Tormey Kline, and reversed as to Edward Kline, Joseph J. Kline, Frank J. Kline and Rena A. Southmayd. No costs allowed.
John H Padgham and Richards & Haga, for Appellants.
The proceeding for the sale of a mining property or other real estate of an intestate is an independent proceeding which is begun by filing the petition and is ended by the confirmation of the sale and the delivery of deed to the purchaser. ( Reed v. Stewart, 12 Idaho 699, 87 P. 1002, 1152; In re Spriggs Estate, 20 Cal. 121; Richardson v Butler, 82 Cal. 174, 16 Am. St. 101, 23 P. 9.)
The jurisdiction of the probate court in a proceeding for the sale of real estate of an intestate is derived solely from statute, is not included in the general jurisdiction over the administration, and is invoked by the filing of the statutory petition and depends upon substantial compliance with statutory provisions. (Lamont v. Vinger, 61 Mont 530, 202 P. 769; Estate of Boland v. Boland, 55 Cal. 310; Ethell v. Nichols, 1 Idaho 741; In re Byrne's Estate, 112 Cal. 176, 44 P. 467; In re Cook's Estate, 137 Cal. 184, 69 P. 968; Noon's Estate, 49 Ore. 286, 88 P. 673, 90 P. 673; Willis v. Pauly, 116 Cal. 575, 48 P. 709; Wallace v. Grant, 27 Wash. 130, 67 P. 578; Pryor v. Downey, 50 Cal. 388, 19 Am. Rep. 656.)
Title to real property vests in the heirs immediately upon the death of an intestate in this state, and the proceeding for sale of real estate of such intestate is one for forced divestiture of the title of the heirs and quasi in rem, and the failure to give notice and make services substantially as required by statute renders the sale void. (2 Black on Judgments, sec. 808; 23 Cyc. 1408; Campbell v. Drais, 125 Cal. 253, 57 P. 994; Davis' Estate, 35 Mont. 273, 88 P. 957; Gassert v. Strong, 38 Mont. 18, 98 P. 497.)
It is the theory and policy of the law of this state that every person interested in a probate matter shall have his day in court and for that purpose must be served with proper notice and given an opportunity to appear if he cares to do so, and, in the absence of waiver, notice to the heirs is indispensable. (Reed v. Stewart, 12 Idaho 699, 87 P. 1002, 1152; Ethell v. Nichols, supra; Mikel v. Hicks, 19 Kan. 578, 27 Am. Rep. 161; Burris v. Kennedy, 108 Cal. 331, 41 P. 458.)
The provisions of C. S., sec. 6726, requiring application for relief within six months after adjournment of the term does not apply to judgments and orders which are nullities and void from the beginning, and the motion to set aside such void judgments or orders is not limited as to time within which such application must be made. (Shumake v. Shumake, 17 Idaho 649, 107 P. 42; Kearns v. Morgan, 11 Idaho 572, 83 P. 954; Luckenbach v. Krempel, 188 Cal. 175, 204 P. 591; Craig v. Craig, 110 Kan. 13, 202 P. 594; State v. District Court, 38 Mont. 166, 99 P. 291; Huffman v. Huffman, 47 Ore. 610, 86 P. 593; People v. Greene, 74 Cal. 400, 5 Am. St. 448, 16 P. 197.)
It is the office of the probate court to determine the heirs of an intestate and such determination is final unless an appeal is taken therefrom. (Glover v. Brown, 32 Idaho 426, 184 P. 649.)
The proper procedure in attacking the proceedings of a probate court on sale of property of intestate is by appeal or motion in that court to set aside the orders complained of. ( Clark v. Rossier, 10 Idaho 348, 78 P. 358.)
The doctrine of caveat emptor applies to an administrator's sale, and the purchaser is bound to know the limit of the authority of the one who assumes to sell, determine at his peril whether the proceedings are legal, and, since it is only by law that the title of the heirs is taken, must in tracing his title through the law be able to show a substantial compliance with the same. (11 R. C. L. 350; 18 Cyc. 826; Gregory v. McPherson, 13 Cal. 562; Glover v. Brown, supra; Townsend v. Gorden, 19 Cal. 188; Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. 936, 74 P. 50.)
Burleigh & Glennon, for Respondents.
"Orders and decrees of a surrogate, or of a probate or orphans' court, in any case in which the jurisdiction has attached, are not open to contradiction or re-examination in any collateral proceedings." (23 Cyc. 1061, 1062; Van Fleet on Collateral Attack, sec. 1, p. 3.)
Their orders and judgments in regard to such matters can only be reviewed by proper motion in such courts made within the time allowed by statute or by appeal from their decisions. ( Clark v. Rossier, 10 Idaho 348, 78 P. 358; Connolly v. Probate Court, 25 Idaho 35, 136 P. 206; Fraser v. Davis, 29 Idaho 70, 156 P. 913, 158 P. 233; Estate of McVay, 14 Idaho 64, 93 P. 31.)
Such judgments or orders are binding and conclusive upon all parties and upon all the world until the same are either modified or reversed on appeal. Unappealed from they cannot thereafter be drawn in question because of any irregularity in the proceedings.
The confirmation or approval of the sale by the probate court is a judicial ascertainment and the decree so made is conclusive upon all parties until either reversed or modified on appeal.
"The jurisdiction to order a sale of decedent's property is special and ceases with the order of confirmation, so that thereafter a court granting a license has no power, by virtue of its jurisdiction previously existing, to reverse its proceedings and set a sale aside." (18 Cyc. 812, and cases cited; In re Leonis, 138 Cal. 194, 71 P. 171.)
The court has no power to vacate or set aside its judgment after the expiration of the six months' period fixed by the statute. (Bunnell & Eno etc. Co. v. Curtis, 5 Idaho 652, 51 P. 767; Vane v. Jones, 13 Idaho 21, 88 P. 1058; Holzeman & Co. v. Henneberry, 11 Idaho 428, 83 P. 497; Hall v. Whittier, 20 Idaho 120, 116 P. 1031; Chandler v. Probate Court, 26 Idaho 173, 141 P. 635.)
It is shown by the undisputed evidence that the purchasers of the property were innocent purchasers, without notice, for a valuable consideration, and that they had expended large sums of money in the improvement and development of the property prior to receiving any notice that the sale would be questioned. The rights of these purchasers should be made the first consideration of the court. (18 Cyc. 829; Thompson v. Tolmie, 2 Pet. (U. S.) 157, 7 L.Ed. 381; Florentine v. Barton, supra; Grignon v. Astor, supra; Tatum v. Iowa Water Co., 34 Cal.App. 55, 166 P. 817; Morrissey v. Gray, 162 Cal. 638, 124 P. 246; Crew v. Pratt, 119 Cal. 139, 51 P. 38.)
--On October 21, 1916, John Tormey died intestate in Lemhi county, leaving an estate situate therein consisting solely of mining property embracing eight undeveloped and unpatented mining claims, of which he was the original locator. William H. Shoup, of Lemhi county, who claimed to be a creditor of the deceased, filed in the probate court of said county a petition for appointment as administrator of the estate. Letters of administration were issued to him on December 5, 1916, and he qualified as administrator. Appraisers were appointed, and an inventory and appraisement was made and filed in which the mining claims were described and designated by name and appraised collectively in the sum of $ 1,500. Notice to creditors was published, and certain claims against the estate were allowed and approved by the court.
Decedent left no wife, children, issue of children, brothers or sisters, but it was subsequently determined by the probate court that, at the time of his death, he left surviving him Louise Tormey Kline, Lillian A. Kline, Mary Tormey Kline, Edward Kline and Joseph J. Kline, of Hartford, Connecticut, Frank J. Kline, of New York City, and Rena A. Southmayd, of Springfield, Massachusetts, who were sons and daughters of Mary Tormey Kline, deceased, a sister of John Tormey, deceased, and who were, therefore, nephews and nieces and lawful heirs of decedent, "and entitled to share in the distribution of his estate."
On June 25, 1917, the administrator filed in the probate court a petition for the sale of the mining property of the estate by way of a bond and lease. On the same day, the administrator filed in the probate court a written statement, signed by Louise Tormey Kline, Lillian A. Kline and Mary Tormey Kline, consenting to the giving of a bond and lease upon the mining property owned by the estate. An order to show cause was thereupon made, which was neither served personally upon all or any of the heirs nor published in a newspaper as...
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