Muhlhauser v. Becker

Decision Date08 August 1945
Docket Number6971.
Citation20 N.W.2d 353,74 N.D. 103
CourtNorth Dakota Supreme Court

Rehearing Denied Oct. 22, 1945.

Syllabus by the Court.

1. Where parties claim to be entitled to the estate of an intestate decedent, under a contract made by the decedent to adopt them as his children and where no statutory adoption proceedings were had, the remedy of said parties to establish their right to the estate is in a court of equity in an action to determine the validity and extent of the contract.

2. Where, during settlement of the estate of an intestate decedent, claimants appear in the county court asserting their right to the estate under such a contract made for their benefit by the decedent, it is error for the county court to attempt to determine the rights arising under such contract, as the county court has no jurisdiction to hear and determine actions or proceedings in equity.

3. Where an appeal is taken to the district court from the judgment of the county court in a matter not within the jurisdiction of that court to hear and determine, and on the appeal appellants specifically raise this want of jurisdiction of the county court over the subject matter, it is error for the district court to overrule the objection of the appellants to the jurisdiction of the county court. In such case it is the duty of the district court to sustain the appeal and reverse the decision of the county court.

4. Where an appeal is taken to this court from a judgment of the district court, which appeal is based solely on the claim that the judgment of the district court is not sustained by the findings of the trial court, the record will be examined to determine the issue raised, and when the record shows the judgment rendered is based on erroneous conclusions drawn from the findings of the trial court, the judgment will be reversed.

Sullivans Fleck & Higgins, of Mandan, and Floyd B. Sperry, of Golden Valley, for appellants.

J. K. Murray, of Bismarck, for respondents-appellees.

BURR, Judge.

Variegated vagarious and voluminous as is the record in this case the issue is simple. Does the county court in the settlement of an estate have jurisdiction to determine the execution, validity and extent of a contract alleged to have been made by the decedent for the benefit of third persons whom, it is claimed, he agreed to adopt and make his heirs?

In Borner et al. v. Larson et al., 70 N.D. 313, 293 N.W. 836, it is shown that Selma Becker and George Gappert, designated in this case, 'respondents and appellees', appeared in the county court of Morton County in the matter of the administration of the estate of Fritz Gappert deceased claiming to be entitled to select the administrator of the estate on the ground they were the adopted children of the decedent. The county court held against them on such contention. The district court reversed the county court; and on appeal to this court the district court was reversed and the decision of the county court upheld.

The decision in this case cited was based upon the fact these respondents and appellees failed to show they had been adopted by decedent. No record of adoption was introduced, no statutory adoption was had, and we held they had no right to select the administrator.

This decision sets forth there was a claim on the part of these respondents and appellees that they 'must be considered the adopted children, because of what is alleged to be an executed contract for adoption.' (page 321 of 70 N.D., page 839 of 293 N.W.) We state some of the foundations for this claim and specifically hold (page 322 of 70 N.D., page 840 of 293 N.W.): 'This decision in no way determines that the respondents have no interest in the estate, and therefore, this matter is left undetermined. If proof of an executed contract to adopt is forthcoming, then the rights of the respondents thereunder will be determined at the time of the settlement and distribution of the estate.' (Italics here ours.)

Later, reference will be made to this italicized portion of the quotation.

The record in the case at bar shows, that when the matter of the settlement of the estate was thereafter before the county court the respondents and appellees herein offered proof to show this alleged contract for adoption and that the contract had been fully executed. Appellants here expressly asserted in the county court 'that such rights are contract rights which can be decided only by a Court of general jurisdiction.' Over the objection of the appellants the county court passed upon the question, determined Fritz Gappert had entered into such a contract on behalf and for the benefit of these respondents, to adopt them and take them as his own children and the contract had been fully executed. Accordingly the county court decreed that these two were the sole heirs of Fritz Gappert, ordered distribution of the estate to them, and entered the decree of distribution.

Those of the petitioners and appellants herein who claimed to be entitled to the estate appealed to the district court from this decision setting forth various specifications of error among which is:

'That the County Court had not jurisdiction to make and enter the decree of August 7th, 1942, from which appeal is taken for the asserted reasons:

'(a) * * *

'(b) * * *

'(c) That the County Court of Morton County has not jurisdiction to entertain petition for purpose or to decree any part or portion of the estate of Fritz (Gappert?) to respondents Selma Gappert Becker and George Gappert, or to entertain subject-matter of contract to adopt, or execution of such contract, even insofar as may be necessary to determine to whom the estate belongs and pass the estate to respondents: * * *.'

The district court held that the county court had jurisdiction to determine whether there was any such contract to adopt and whether it had been fully executed.

The trial court found 'that the matter of the jurisdiction of the County and District Court was before the Supreme Court in the case of Borner v. Larson supra. The matter contained in the administrator's brief and respondents' brief before the Supreme Court appears to demonstrate that such question was before the Supreme Court. This court cannot disregard and is bound by the statement in the case of Borner v. Larson supra as follows: 'If proof of an executed contract to adopt is forthcoming, then the rights of the respondents thereunder will be determined at the time of the settlement and distribution of the estate.'' (Italics ours.)

It will be noted that this italicized portion is the italicized portion hereinbefore set forth.

The district court ruled that such excerpt from the opinion of this court must be interpreted as giving to the county court jurisdiction to pass upon the question of the existence, validity, execution and extent of this alleged contract to adopt and 'became the law of the case.'

When entering formal Findings of Fact and conclusions of law, consisting of twenty-eight typewritten pages drawn in the usual form, the court set forth therein Finding No. 11 as follows: 'That there is hereby made a part of these findings of fact the Memorandum Opinion made by the trial court on the 31st day of January, 1944 and consisting of pages 1 to 59 inclusive, being presented to respective counsel and filed herein, by reference thereto and with the same force and effect as if said Memorandum of Opinion were fully set out herein verbatim.'

This Memorandum Opinion consists of fifty-nine typewritten pages and therein the court goes very exhaustively into the question of the power of the county court to determine the issue as to whether there was an executed contract to adopt and holds it had such power.

It is necessary to make rather extensive excerpts from this Memorandum Opinion in order to ascertain the position of appellants. The Memorandum Opinion states 'the question of jurisdiction is first for consideration and decision.' The court, in the findings, sets forth that, in appealing from the order and decree of the county court distributing the estate, the appellants had attacked such order and decree on the ground the county court had no jurisdiction to determine any issue created by the claim of an executed contract for adoption and set forth the specification of error hereinbefore stated.

The district court passed upon the objection to the jurisdiction of the county court and ruled that the county court had such jurisdiction, thus overruling the objection of the appellants and compelling the trial of the case. On this trial the district court found there was such a contract to adopt and affirmed the action of the county court.

From the judgment entered in the district court the parties herein named as plaintiffs and appellants appealed.

On the appeal to this court appellants set forth eleven specifications of error, the eighth and ninth of which are as follows:

'8. That the court erred in denying said motion of the appellants, made upon the files and records in said appeal, at the beginning of the trial of said appeal, and in forcing the appellants to proceed with said trial, after the making of said motion, and erred in denying said motion, after all of the evidence had been taken in said matter, the record showing that the probate court had no jurisdiction to make said findings of fact, decision and order appealed from, and said district court having no jurisdiction over said matter, in said appeal, except to make an order reversing and vacating said findings of fact, order and decision of the probate court.

'9. That the County Court of Morton County in the probate proceedings relative to the estate of Frederick William Gappert and the District Court of Morton...

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2 cases
  • Muhlhauser v. Becker
    • United States
    • North Dakota Supreme Court
    • August 8, 1945
    ...May 22, 1944, the trial court incorporates its memorandum opinion by January 31, 1944, and the memorandum opinion in the companion case, 20 N.W.2d 353, just decided consisting of typewritten pages. The result is that in the document known as 'Findings of Fact, Conclusions of Law and Order f......
  • Muhlhauser v. Becker
    • United States
    • North Dakota Supreme Court
    • August 31, 1945

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