Knowles v. Kasiska

Decision Date31 May 1928
Docket Number4866
Citation268 P. 3,46 Idaho 379
PartiesALICE KNOWLES, Respondent, v. W. F. KASISKA and FRED ROBERTS, Appellants, And E. C. WHITE, Defendant
CourtIdaho Supreme Court

PROBATE COURTS-JURISDICTION-VERITY OF PROCEEDINGS-NOTICE OF HEARING OF APPLICATION FOR LETTERS TESTAMENTARY-PROOF OF MAILING-ACTION ON EXECUTOR'S BOND-ASSIGNMENT OF ACTION-EVIDENCE-CONSIDERATION-DECREE OF DISTRIBUTION-CONCLUSIVENESS UPON EXECUTOR AND SURETIES-ADMISSION OF SECONDARY EVIDENCE.

1. Probate courts, being courts of record under Const., art. 5 sec. 21, and having original jurisdiction in all matters of probate, their judgments cannot be collaterally attacked.

2. In probate matters, the same verity attaches to judgments record and proceedings of probate court as attaches to same matters in other courts of record.

3. Where record recites that which was done, nothing to the contrary may be presumed, but, where the record is silent presumption is that that was done which was requisite to sustain jurisdiction.

4. Where record of probate court was silent as to mailing notices of hearing of application for letters testamentary to heirs, as required by C. S., sec. 7446, it will be presumed for the purposes of action by residuary legatee on executor's bond, that notices were mailed, and that probate court had jurisdiction to make order admitting will to probate.

5. Allegations of complaint in action by residuary legatee on executor's bond, relative to assignment of share of another legatee, to effect that plaintiff was, by virtue of assignment, the owner and holder of all right, title and interest of such legatee in and to assets of estate, held sufficient to justify admission of written assignment, executed after institution of action, and tending to show intention of legatee to make oral assignment prior thereto for the purpose of bringing the action.

6. In action by residuary legatee on executor's bond to recover her share and that of another legatee, evidence held sufficient to establish an assignment to plaintiff of interest of another legatee prior to bringing action and prior to execution of written assignment thereafter.

7. Where legatee's cause of action on executor's bond was assigned to another residuary legatee for the purpose of bringing action on bond, it was not necessary to allege or prove any other consideration therefor.

8. Where letters were shown to have been destroyed thoughtlessly without regard to any bearing they might have on future controversy secondary evidence relative to their contents was admissible without proof of search.

9. Decree of distribution in probate court, fixing amount of money to be distributed and order passing on and approving final account of executor, held, in absence of fraud or collusion between legatees and executor, binding on executor and his sureties, though sureties were not parties to that proceeding.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action by residuary legatee on executor's bond. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Walter H. Anderson, for Appellants.

Bondsmen on an executor's bond are not liable for an indebtedness of the executor to the decedent prior to the executor's appointment. (Sanders v. Dodge, 140 Mich. 236, 112 Am. St. 399, 103 N.W. 597; Howell v. Anderson, 66 Neb. 575, 92 N.W. 760, 61 L. R. A. 313.)

An assignment after an action is brought of the subject matter of the action does not warrant a recovery. (American Investment Co. v. Baker, supra.)

A consideration is necessary to support an assignment of the character involved herein. (5 C. J. 931; Miller v. Bonner, 163 La. 332, 111 So. 776.)

The probate court never obtained jurisdiction in this matter for the reason that the notices required to be mailed to the beneficiaries in the will were not mailed. (Pearson v. Pearson, 46 Cal. 609; Bancroft's Probate Practice, p. 149, sec. 82.)

L. E. Glennon, for Respondent.

Being courts of record in probate matters, the orders and decrees of probate courts are entitled to the same verity as the orders and decrees of any other court of record (Kline v. Shoup, supra), and unless the record affirmatively shows that the court had not acquired jurisdiction, it will be presumed that everything necessary to give the court jurisdiction had been done and the necessary proofs adduced at the time the order or decree was entered. It is elementary that in courts of record the orders and decrees need not affirmatively show the jurisdictional facts. (Western Lumber & Mill Co. v. Merchants' Amusement Co., 13 Cal.App. 4, 108 P. 891; Pedersen v. Moore, 32 Idaho 420, 184 P. 475; Smith v. Canyon County C. S. Dist. No. 34, 39 Idaho 222, 226 P. 1070; Blandy v. Modern Box Mfg. Co., 40 Idaho 356, 232 P. 1095.)

"The generally accepted rule is that a judgment or decree against an executor or administrator is conclusive against the sureties on his bond, although they were not parties to the proceedings, and cannot be collaterally questioned by them in an action on the bond. . . . " (24 C. J. 1079, sec. 2589; Chaquette v. Ortet, 60 Cal. 594; Irwin v. Backus, 25 Cal. 214, 85 Am. Dec. 125; Kenck v. Parchen, 22 Mont. 519, 74 Am. St. 625, 57 P. 94; United Brethren v. Akin, 45 Ore. 247, 2 Ann. Cas. 353, 77 P. 748, 66 L. R. A. 564; Weyant v. Utah Sav. etc. Co., 54 Utah 181, 9 A. L. R. 1119, 182 P. 189; Craven v. State, 50 Ind.App. 30, 97 N.E. 1021.)

The judgments or orders of probate courts in this state are binding and conclusive on 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 by reason of any irregularity in the proceedings. (Grignon v. Astor, 43 U.S. (2 How.) 319, 11 L.Ed. 283; United States v. Arredondo, 31 U.S. (6 Pet.) 691, 709, 6 L.Ed. 547, 554; Brown on Jurisdiction, secs. 141-143, and notes.)

It is elementary that oral proof may be offered of the contents of a written instrument, if it is shown that the written instrument has been lost or destroyed. The testimony of the respondent was that the letters constituting the assignment were destroyed, and this testimony is not disputed or discredited in any way. That being true, it would appear to be unnecessary to cite authority on the proposition that her oral testimony was admissible as to the contents of these letters. (Mills v. Glennon, 2 Idaho 105, 66 P. 116.)

The rule, with reference to assignments, stated in the case of Porter v. Title Guaranty & Surety Co., 21 Idaho 312, 121 P. 548, at page 324 of the Idaho Reports, is as follows:

"In the absence of statutory provisions, prescribing the mode of assignment, no particular method or form is necessary to effect a valid assignment of property, claims or debts, so as to defeat the garnishment proceedings by the creditor or assignor. If the intent of the party to effect an assignment be clearly established, it is sufficient and the assignment may be in the form of an agreement, or order or any other instrument which the parties may see fit to use for the purpose. (20 Cyc. 1014, 1015; Page on Contracts, sec. 1277; Clark v. Sigua Iron Co., 81 F. 310, 26 C. C. A. 423; Good Fellows v. Campbell, 17 R. I. 402, 22 A. 307, 13 L. R. A. 601; Baillie v. Stephenson, 95 Wis. 500, 70 N.W. 660.)" (Italics ours.)

VARIAN, Commissioner. Brinck and Baker, CC., Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur. Budge, J., took no part in the decision.

OPINION

VARIAN, Commissioner

Action by residuary legatee on the bond of executor to recover her share and that of another legatee distributed to them by decree of the probate court. The cause was tried upon the complaint as amended and a second or amended answer, to a jury, and, at the conclusion of the testimony, both plaintiff and defendants moved for an instructed verdict. The court thereupon instructed a verdict for plaintiff. The executor was not served with process, and the defendant sureties appeal from the judgment. Appellants offered no testimony.

The principal contention is that the sureties are not liable because the record of the probate court fails to affirmatively show that notices of the hearing upon application for probate of the will of Annie Hall, deceased, were mailed as required by the provisions of C. S., sec. 7446, and his appointment, and all proceedings thereunder, were therefore void.

The statute (C. S., sec. 7445) requires that when the petition for probate of a will is filed, the judge must fix a day for hearing, not less than ten nor more than thirty days from the production of the will; that notice of the hearing shall be given by publication, if there is a newspaper published in the county, and if there is no newspaper so published, by posting notices, etc. C. S., sec. 7446, prescribes that copies of the notice must be mailed to the heirs of the testator, if resident in the state, at their places of residence, if known to petitioner, and a like copy to the person named as executor or coexecutor in the will, at least ten days before the hearing. The statute further requires that "proof of mailing the copies of the notice must be made at the hearing," and that personal service of the notice, ten days before the hearing, is equivalent to mailing.

The order of the probate court admitting the will to probate recites "that notice of said hearing was duly given as required by law," and proof of publication of notice of the time and place of hearing of the petition for probate, for the time required by statute and the order of the probate court, was filed; but there is no express reference to mailing copies of the notice to the heirs of Annie Hall, deceased.

Probate courts, under sec....

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  • Gilder v. Warfield
    • United States
    • United States State Supreme Court of Idaho
    • December 13, 1941
    ... ... record, and entitled to the same presumptions in their favor ... ( Moyes v. Moyes, supra , Short v ... Thompson, supra. , Knowles v. Kasiska, ... 46 Idaho 379, 268 P. 3; Connolly v. Probate Court, ... 25 Idaho 35, 136 P. 205; Clark v. Rossier, 10 Idaho ... 348, 78 P ... ...
  • Short v. Thompson
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    • United States State Supreme Court of Idaho
    • February 20, 1936
    ...(Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; Walker B. & T. Co. v. Steely, 54 Idaho 591, 605, 34 P.2d 56.) In Knowles v. Kasiska, 46 Idaho 379, 384, 268 P. 3, this court, citing previous decisions, "Probate courts, under sec. 21, art. 5, of the constitution, are made courts of recor......
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    • October 5, 1939
    ... ... 21, Const. Idaho; Clark v. Rossier, 10 Idaho ... 348, 78 P. 358, 3 Ann. Cas. 231; Connolly v. Probate ... Court, 25 Idaho 35, 136 P. 205; Knowles v ... Kasiska, 46 Idaho 379, 268 P. 3.) ... Decree ... of probate court in probate matters cannot be attacked for ... irregularities in ... ...
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