Larsen v. Larsen

• Decision Date: 28 April 1927
• Docket Number: 4574
• Citation: 256 P. 369,44 Idaho 211
• Parties: EMMA C. LARSEN, Appellant, v. LOIS LARSEN, Respondent
• Court: Idaho Supreme Court

256 P. 369

44 Idaho 211

EMMA C. LARSEN, Appellant, v. LOIS LARSEN, Respondent

No. 4574

Supreme Court of Idaho

April 28, 1927

DESCENT AND DISTRIBUTION - PERFORMANCE OF CONTRACT - INSUFFICIENCY OF COMPLAINT-JUDGMENT-DECREE OF PROBATE COURT NOT SUBJECT TO COLLATERAL ATTACK-JURISDICTION OF PROBATE COURT.

1. Complaint by mother of deceased against widow, alleging agreement for specific performance of contract stipulating certain real estate was deceased's separate property and for its equal distribution, was insufficient to state a cause of action, in view of C. S., secs. 7730, 7925, 7930, 7931 giving probate court jurisdiction to determine persons entitled to property of deceased and proportions and parts to which each was entitled.

2. Agreement between mother and widow of deceased to effect that certain real estate was separate property of deceased and providing for its equal distribution held not to constitute an agreement of conveyance.

3. Decree of probate court determining character of property as between widow and mother under C. S., sec. 7793, subd. 2, and sec. 7803, held not subject to collateral attack by independent action by mother for specific performance of agreement, stipulating that certain property was deceased's separate property and providing for equal distribution.

4. Observance or enforcement of agreement between mother and widow of deceased stipulating that certain real estate was deceased's separate property, and providing for its equal distribution, held a matter for probate court.

5. Mother of deceased, by appearing in probate court, became bound by decision therein that property of deceased was community property, and, in absence of fraud or mistake decree therein, subject to reversal or modification on appeal, became final and conclusive.

6. Under Const., art. 5, sec. 21, probate courts have exclusive jurisdiction over estates of deceased persons, subject to appeal, and orders in exercise of jurisdiction cannot be impeached on collateral attack.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action by mother of Lewis V. Larsen, deceased, against his widow for specific performance of contract stipulating certain real estate to be the separate property of deceased and providing for its equal distribution between plaintiff and defendant. Demurrer to complaint sustained, and judgment dismissing plaintiff's action. Affirmed.

Affirmed. Costs to respondent. Petition for rehearing denied.

Hawley & Hawley, for Appellant.

A complaint stating facts sufficient to constitute a cause of action is not subject to a general demurrer. (C. S., secs. 6687, 7730; William Hill Co. v. Lawler, 116 Cal. 359, 48 P. 323; Cardoner v. Day, 253 F. 572; Salisbury v. Spofford, 22 Idaho 393, 126 P. 400; Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107; Ewald v. Hufton, 31 Idaho 373, 173 P. 247; Peterson v. Peterson, 35 Idaho 470, 207 P. 425; Chever v. Ching Hong Poy, 82 Cal. 68, 22 P. 1081; Glover v. Brown, 32 Idaho 426, 184 P. 649; Coats v. Harris, 9 Idaho 458, 75 P. 243; Flores v. Flores, 55 Cal.App. 595, 204 P. 54; Cooley v. Miller & Lux, 156 Cal. 510, 105 P. 981.)

Where a contract is susceptible of more than one meaning the court should hear evidence of all the circumstances surrounding the making of the contract. (Joy v. Rousseau, 72 Cal.App. 179, 236 P. 972; Holtham v. Savory, 72 Cal.App. 497, 238 P. 136; Tilden v. Hubbard, 25 Idaho 677, 138 P. 1133.)

T. A. Walters, for Respondent.

The decree of distribution made by the probate court distributing the property to the defendant in this action was a conclusive adjudication of his right to the property as the heir of Lewis V. Larsen, deceased, and was final and concluded the rights of the plaintiff. Plaintiff's only remedy was to appeal from the decree of distribution. The trial court rightfully sustained the demurrer. (C. S., secs. 7729, 7730; Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; Estate of Blackington, 29 Idaho 310, 158 P. 492; Miller v. Mitcham, 21 Idaho 741, 123 P. 941; Daniels v. Isham, 40 Idaho 614, 235 P. 902.)

The probate court had authority to determine the persons who, by law, were entitled to the property, and also the portions and parts to which each of these persons was entitled. If the decree was erroneous, the remedy was by appeal. (In re Schmierer's Estate, 168 Cal. 747, 145 P. 99; O'Brien v. Nelson, 164 Cal. 573, 129 P. 985; Luscomb v. Fintzelberg, 162 Cal. 433, 123 P. 247; William Hill Co. v. Lawler, 116 Cal. 359, 48 P. 323; In re Ross' Estate, 187 Cal. 454, 202 P. 641; In re Scrimger's Estate, 188 Cal. 158, 206 P. 65.)

BUDGE, J. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

BUDGE, J.

This appeal is from an order and final judgment of the district court dismissing appellant's action, after a general demurrer to the complaint was sustained. Appellant, plaintiff in the court below, is the mother of Lewis V. Larsen, deceased, and respondent, defendant in the lower court, is the widow of said deceased. The sole question for determination is whether or not the complaint states a cause of action.

The complaint alleges the entering into of an agreement between plaintiff and defendant containing the following stipulations: That Lewis V. Larsen died intestate, leaving surviving him as heirs his widow and mother; that at the time of his death the deceased was possessed of certain real and personal property, a portion of which was community property of the deceased and his widow, and that the parties to the agreement, "for the purpose of avoiding litigation have stipulated and agreed between themselves" that certain described real estate constituted the separate property of the deceased and should be divided equally between them at the time of the distribution of the estate.

It is further alleged in the complaint that on December 4, 1923, defendant filed a petition in the probate court in the matter of the estate of Lewis V. Larsen, deceased, asking that all of said real estate be distributed to her as community property; that thereafter plaintiff filed written objections to defendant's petition, setting out as grounds for objection that the agreement of the parties was that the property involved was separate property of the deceased and should be equally divided between plaintiff and defendant; that defendant resisted said objections, repudiated the agreement, and renewed her request to have the property distributed as community property.

The complaint further alleges the issuing of a decree of distribution by the probate court wherein the property in dispute was declared to have been the community property of the deceased and defendant, and that the same was distributed to defendant; and that though demanded so to do, defendant has, in violation of her agreement and contrary to the provisions thereof, failed, neglected and refused to convey to plaintiff an undivided one-half interest, or any interest at all, in and to said real estate, and has completely repudiated said agreement and refuses to carry out the provisions thereof. The prayer is for specific performance of the agreement, requiring defendant to make a conveyance to plaintiff of an undivided one-half interest in and to the real estate described, and for an accounting of the income, profits and expenses thereof.

From a reading of the agreement, which we do not think ambiguous or uncertain, and which is made the foundation of appellant's action, it appears that at the time it was entered into, appellant and respondent labored...