Moyes v. Moyes

• Citation: 94 P.2d 782,60 Idaho 601
• Decision Date: 05 October 1939
• Docket Number: 6638
• Parties: WALTER ABBOTT MOYES, Respondent, v. OSCAR L. MOYES, Appellant
• Court: United States State Supreme Court of Idaho

94 P.2d 782

60 Idaho 601

WALTER ABBOTT MOYES, Respondent, v. OSCAR L. MOYES, Appellant

No. 6638

Supreme Court of Idaho

October 5, 1939

PROBATE COURTS-ORIGINAL JURISDICTION-DECREES OF PROBATE CONCLUSIVENESS OF-ERRORS IN PROCEEDINGS OR DECREE-AVAILABLE REMEDIES-COLLATERAL ATTACK.

1. When testatrix' will directed payment of expenses and that estate be divided equally between her two sons, executor, who was one of the sons, filed a petition for distribution alleging that in pursuance of an agreement with his brother he had paid debts in consideration for which he was to have certain property as his sole and separate property, and both sons, who were adults and residing within probate court's jurisdiction, had notice of pendency of proceedings, probate court had jurisdiction to make order of distribution, whether under direction of will or under alleged agreement.

2. The probate courts as constitutional courts are vested with exclusive original jurisdiction in the settlement of estates of deceased persons, and it is within their jurisdiction to determine who are the heirs of a deceased person and who is entitled to succeed to the estate and their respective shares and interests therein.

3. The decrees of probate courts in matters of heirship, succession and interests in estates of deceased persons are conclusive.

4. If the probate court erred in any respect in the course of its proceedings in an estate or in the final decree of distribution, such error was open to correction either on appeal or by motion to set aside the decree, and it could not be the basis of a petition in the district court to vacate decree on collateral attack. (I. C. A., secs. 5-905, 11-401.)

5. In matters of probate arising within exclusive probate jurisdiction, all proceedings must be had and relief must be originally sought in the probate court, and the jurisdiction of the district court in such matters is only appellate.

6. Subjects and issues cognizable in a court of exclusive original jurisdiction may not be collaterally attacked in any other tribunal.

7. An action in the district court to vacate a decree of distribution made by the probate court in estate proceedings and to quiet title in plaintiff to certain property was an unauthorized "collateral attack" on probate court's decree.

8. The attack on a judgment is "collateral" if the action or proceeding has an independent purpose and contemplates some other relief or result than the mere setting aside of the judgment, although the setting aside of the judgment may be necessary to secure such independent purpose.

9. An order of the probate court void on its face may be attacked in any manner or at any time, collaterally or otherwise.

10. False swearing on trial does not constitute that class of fraud or perjury for or on account of which a judgment may be vacated by a court of equity on collateral attack.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. D. H. Sutphen, Presiding Judge.

Action in district court to vacate a judgment of the probate court decreeing distribution of the estate of a decedent. From a judgment in favor of the plaintiff vacating the decree of distribution and quieting title in plaintiff, defendant appealed. Judgment of district court reversed and cause remanded with directions to dismiss action.

Reversed and remanded with instructions. Costs awarded in favor of appellant.

Anderson Bowen & Anderson, for Appellant.

Appeal may be taken to district court from a judgment or order of the probate court in probate matters. (Sec. 11-401, I. C. A. 1932; Estate of Coryell, 16 Idaho 201, 101 P. 723; Chandler v. Probate Court, 26 Idaho 173, 141 P. 635.)

Probate courts in Idaho are courts of record and have original jurisdiction in all matters of probate, settlement of estates of deceased persons, and appointment of guardians. (Art. 5, sec. 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 the exercise of its jurisdiction, except in that court, or some proceeding first had in that court, or on an appeal from its decision. (Sec. 21, art. 5, Const. Idaho; Short v. Thompson, 56 Idaho 361, 55 P.2d 163; Clark v. Rossier, supra; Connolly v. Probate Court, supra; Knowles v. Kasiska, supra.)

The decree of distribution cannot be assailed by collateral attack as is attempted in this case. (Clark v. Rossier, supra; Abrams v. White, 11 Idaho 497, 83 P. 602; Larsen v. Larsen, 44 Idaho 211, 256 P. 369; 15 Cal. Jur., sec. 124, p. 18; Connolly v. Probate Court, supra; Maloney v. Zipf, 41 Idaho 30, 237 P. 632; In re Schmierer's Estate, 168 Cal. 747, 145 P. 99.)

A judgment is open to collateral attack only where there is fraud of an extrinsic or of a collateral nature. Fraud based on the ground of perjury, or fraud in obtaining a judgment are not grounds for a collateral attack on a judgment. (Abrams v. White, supra; Donovan v. Miller, 12 Idaho 600, 88 P. 82, 10 Ann. Cas. 444, 9 L. R. A., N. S., 524; Zounich v. Anderson, 35 Idaho 792, 208 P. 402.)

Merrill & Merrill, for Respondent.

The provisions of a will are mandatory and make it the imperative duty of the probate court to distribute the property in the manner as in said will specified. Any other attempted distribution of the property in question is in excess of the probate court's jurisdiction and void. (Glover v. Brown, 32 Idaho 426, 184 P. 649.)

Probate courts can partition real estate only in the event the statutory provisions set out by sections 15-1312 to 15-1321, I. C. A. 1932, are complied with. (Moore v. Lauff, 30 Cal.App. 452, 158 P. 557; Buckley v. Superior Court of San Francisco County, 102 Cal. 6, 36 P. 360, 41 Am. St. 135.)

The probate court is a court of original jurisdiction in probate matters but when it comes to partition it only has a special jurisdiction conferred on it by statute. (Moore v. Lauff, supra; Buckley v. Superior Court of San Francisco, supra.)

The proceeding in the case at bar is not a collateral attack on the judgment, but is a direct attack. (Glover v. Brown, supra; Campbell v. Campbell, 149 Cal. 712, 87 P. 573; Swinehart v. Turner, 38 Idaho 602, 224 P. 74; Kline v. Shoup, 38 Idaho 202, 226 P. 729.)

AILSHIE, C. J. Givens, Morgan and Holden, JJ., concur. BUDGE, J., Concurring in Part and Dissenting in Part.

OPINION

AILSHIE, C. J.

--Louise Marion Moyes died testate October 14, 1931, leaving surviving her two sons, Oscar L. Moyes, appellant herein, and Walter A. Moyes, respondent. Four years prior to her death Mrs. Moyes had executed her last will and testament directing the payment of expenses of her last illness and funeral and leaving her estate to be "divided equally between" her two sons, and appointing appellant as executor of the will without bond. January 23, 1933, petition for probate of will was filed and February 11th it was admitted to probate and appellant was appointed as sole executor. July 7, 1934, a general inventory of the estate was filed showing a number of lots in the city of Pocatello as belonging to the estate, together with some personal property consisting of furniture and cash on hand in the sum of $ 500. Notice was given to the creditors and claims against the estate were subsequently presented and paid by the executor; and thereafter the executor filed his account with the probate court, hearing was had thereon, and the account was settled and approved, showing all debts of the deceased and expenses of administration as having been paid. Thereafter on October 11, 1934, the executor filed his "Petition for Final Distribution"; notice was thereupon given as required by statute of the time and place for hearing on "petition praying for a decree of distribution of the residue of said estate to the persons thereunto entitled." The petition for distribution contained the following allegations:

"That each of the last aforesaid persons, under the terms of the will of Louise Marion Moyes, deceased, were to receive one-half of said estate.

"That pursuant to an agreement by the said Oscar L. Moyes your petitioner herein, and Walter Abbott Moyes, it was agreed between the two heirs to the estate that the said Oscar L. Moyes should pay all the debts incurred and owing by the said Louise Marion Moyes, deceased, and for and in consideration of the payment of said debts, the said Oscar L. Moyes was to have as his sole and separate property, the property located and described as follows:

"The South 20 feet (twenty) of lot 8 (eight) and the north 20 feet (twenty) of lot 9 (nine), block 401 (four hundred one) of the city of Pocatello, Bannock County, Idaho.

"That in pursuance of said agreement between Oscar L. Moyes and the said Walter Abbott Moyes, your petitioner paid the debts and obligations that were presented to him as administrator with the necessary vouchers and now prays this Honorable Court that the estate of the said Louise Marion Moyes be divided and the

"South twenty feet (20) of lot eight (8) and the north twenty feet (20) of Lot nine (9), block four hundred one (401), City of Pocatello, County of Bannock, Idaho

be decreed, and the same is hereby decreed the property of the said Oscar L. Moyes; and

"An unimproved lot fourteen (14) block forty-two (42) in the city of Pocatello, Bannock County, Idaho, be,

and the same is hereby decreed the property of Walter Abbott Moyes.

"That the above division of the residue of the estate of the said Louise Marion Moyes be decreed and approved by this Honorable Court as prayed in this petition.

"WHEREFORE your petitioner prays that the administration of said...