Tooz v. Tooz

• Decision Date: 16 November 1951
• Docket Number: No. 7268,7268
• Citation: 50 N.W.2d 61,78 N.D. 432
• Parties: TOOZ v. TOOZ et al.
• Court: North Dakota Supreme Court

Page 61

50 N.W.2d 61

78 N.D. 432

TOOZ v. TOOZ et al.

No. 7268.

Supreme Court of North Dakota.

Nov. 16, 1951.

Syllabus by the Court.

1. A proceeding to contest a will under the provisions of Section 30-0608, RCND 1943 must be instituted within one year after the entry in the county court of an order admitting the will to probate, when the will is contested upon any ground other than that some jurisdictional fact is wanting in the former probate.

2. A proceeding for the probate of a will is in the nature of a proceeding in rem, the subject matter of which is the will.

3. One who invokes the authority of a court to determine a controversy on its merits thereby makes a general appearance and, in the absence of a previously made and properly preserved objection to the jurisdiction of the court, such an appearance amounts to a waiver of the right to object to the jurisdiction of the court over the person of the party so appearing.

4. Where an heir files in the county court having jurisdiction of the subject matter a petition for proof and probate of a will of a deceased testator asking that the will be admitted to probate and that the petitioner be appointed as executor in accordance with the provisions of the will, and the court, without citing the petitioner, hears and grants the petition, whereupon the petitioner qualifies as executor and enters upon the performance of the duties of his office, it is held: That by his conduct the petitioner waives service of citation required by Section 30-0508, RCND 1943 and submits his person to the jurisdiction of the court, and it becomes wholly immaterial whether or not he was served with a notice or citation of the hearing of his petition.

J. K. Murray, Bismarck, for appellant.

Floyd B. Sperry, Golden Valley, for respondent.

MORRIS, Chief Justice.

This is an appeal from an order of the District Court of Dunn County dismissing two appeals from orders of the County Court of Dunn County dismissing a petition for the contest of the will of Fred Tooz, deceased, after probate, and to revoke the probate of the will. The petitioner has sought to invoke the last three subdivisions of Section 30-0608, RCND 1943. This section provides:

'When a will has been admitted to probate, any person interested therein, at any time within one year after such probate may contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations that evidence discovered since the probate of the will, the material facts of which must be set forth, shows:

1. That a will of the decedent, of later date than the one proved, revoking or changing the former will, has been discovered and is offered;

2. That some jurisdictional fact was wanting in the former probate;

3. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or

4. That the former will was not duly executed and attested.'

The determination of this controversy requires a consideration of facts disclosed by the record made in the county court, which has been certified to us on this appeal.

Fred Tooz, a resident of Dunn County, died on the tenth day of February 1947. On the sixth day of March 1947, Ernest Tooz, a son of the deceased, presented to the County Court of Dunn County a petition for proof and probate of will, setting forth necessary jurisdictional facts and naming the widow, three daughters of the deceased, and the petitioner as heirs at law. The petition asked the court to appoint a day for hearing the proofs of the will, which is now the object of this contest, and further asked the court to issue letters testamentary to Ernest Tooz, the then petitioner, as the person named in the will as executor. All of the heirs at law who were named as respondents in the petition, being the widow and three daughters of the deceased, executed, in writing, appearances and waivers of service of citation and notice. On the day the petition for probate of the will was filed, the following steps were taken which culminated in the qualification of the petitioner as executor of the estate: The Judge of the County Court of Dunn County issued a citation hearing petition for proof and probate of will setting the hearing for two o'clock in the afternoon of that day, which citation recited: 'All persons interested having made and filed in this Court Waiver of service of citation, no other or further service hereof is required.' The written testimony of the two subscribing witnesses to the will was thereupon filed with the court and an order admitting the will to probate was issued and filed. A certificate of probate of will was also issued and filed at the same time. Letters testamentary were issued to Ernest Tooz, who executed and filed his oath of office as executor.

The petitioner, who is the present contestant, continued in office as executor until he was suspended by order of the judge of the county court on March 24, 1947, and a hearing on the question of his permanent removal was set for April 15, 1947. On April 2, 1947, Ernest Tooz executed and filed in the county court an inventory and appraisement of the property of the estate. He was later permanently removed from office and Thekla Tooz, widow of the decedent, was appointed administratrix with the will annexed.

The records of the supreme court show that on August 19, 1947, Ernest Tooz filed a claim consisting of nine items totaling $8,215 against the estate. The administratrix with the will annexed rejected the claim and her rejection was approved by the county court. Ernest Tooz then appealed to the District Court of Dunn County and ultimately carried his appeal to this court. In re Tooz' Estate, 76 N.D. 492, 37 N.W.2d 493.

On March 6, 1950, exactly three years after the will of Fred Tooz had been admitted to probate and Ernest Tooz had been appointed and had qualified as executor of the estate of the deceased, Ernest Tooz filed in the County Court of Dunn County a petition for the contest of will after probate and to revoke probate of the will of Fred Tooz, deceased. The petition purports to seek relief under paragraphs 2, 3 and 4 of Section 30-0608, RCND 1943, above quoted. The contestant contends that the county court never obtained jurisdiction to admit the will to probate because no citation hearing the petition for proof and probate of will was served upon the contestant, who was then the petitioner; that Fred Tooz was not competent to execute a will; and that the purported will was not duly executed and attested as provided by law.

The trial court held that the contest was not started within one year after the will was admitted to probate and that it was not necessary to serve the citation hearing the petition for proof and probate of the will upon the then petitioner, although he was an heir; and that the petitioner cannot now contest the probate of the will because he voluntarily appeared in the proceedings, became a party thereto, and will not be heard to challenge the jurisdiction of the court over his person.

The contestant and appellant cites Section 30-0508. RCND 1943 which reads as follows:

'The parties who must be cited upon a petition for the probate of a will include:

'1. The surviving husband or wife, if any;

'2. All the heirs of the testator;

'3. The devisees and legatees named therein;

'4. All persons in being who would take an interest in any portion of the property under the provisions of the will; and

'5. The person named as executor or trustee therein unless he is the petitioner.'

Although he concedes that in probate proceedings generally the only parties required to be served are the respondents and no service need be made on the petitioner, he argues that in the probate of a will Section 30-0508, RCND 1943, above quoted, specifically requires that 'All the heirs of the testator' must be cited. He further argues that, this being a special statute, it must be followed literally and that the petitioner, if he is an heir, must be cited in order to give the court jurisdiction over the person of the petitioner. In support of this view he points to paragraph 5 of this section which requires the person named as executor or trustee under the will to be cited 'unless he is the petitioner.' This, it is asserted, indicates that all interested parties except an executor or trustee must be cited whether they are petitioners or not. This highly technical but plausible argument cannot prevail in this case when confronted with the law with respect to the acquisition of jurisdiction of the person of the contestant under the facts disclosed with respect to his conduct in connection with the proceeding which he now seeks to attack.

Section 30-0608, RCND 1943 quoted at the outset of this opinion must be construed together with Section 30-0524, RCND 1943 which provides: 'A decree which grants the probate of a will is conclusive if the court had jurisdiction, unless reversed on appeal or vacated on a rehearing applied for within one year, saving to minors and persons of unsound mind or otherwise incompetent a like period of one year after their respective disabilities are removed.'...