Amy v. Amy

12 Utah 278 | Utah | 1895

KING, J.: ‘

From the record before us it appears that Dustin Amy was married to Leonora Scott Amy, by whom he had several children, who are known herein as Eoyal D. Amy et al.j subsequently he married Lavira 0; Smith, widow of Samuel Smith, who bore him one child, the decedent herein; that said Lavira C. Smith-Amy had one child, Lav-ira A. Smith, by her first marriage; that in 1883, said Lavira C. Smith-Amy died, leaving, surviving her, as her only heirs (her husband being dead), Oscar A. Amy and Lavira A. Smith, and by order of the probate court of Salt Lake county, her estate was distributed in December, 1888, to her said heirs. Two days later, Lavira A. Smith died, intestate, leaving, surviving her, no children, nor father nor mother. In April, 1886, Oscar A. Amy married Jennie Amy; and in May, 1889, he died intestate, without issue, leaving, surviving him, the said Jennie Amy, who claims his estate as his widow, and his half brothers and sisters, named herein as Eoyal D. Amy et al., and his aunts, Adelia Young et al, sisters of his deceased mother. The estate left by decedent consists of valuable property in Salt Lake City; and in the probate court Jennie Amy petitioned for the distribution of the entire estate to her; alleging that she was his wife and sole heir; that he died leaving no brothers or sisters of the whole blood, the blood of the mother of said decedent; that the property of which he died seised was inherited by him from his mother, and was originally acquired and owned by' her. Adelia Young et al. also prayed for distribution of Jhe estate, representing that they were the maternal aunts of the deceased, and his only heirs, and averring that Jennie Amy-was not the widow of the deceased. Eoyal D. Amy et al. alleged in their petition for distribution that they were the sole heirs of deceased; that the estate was originally acquired and owned by Dustin Amy; and that it came by devise from him to said deceased. They also denied that Jennie Amy was decedent’s widow. The probate court distributed all of the estate to Adelia Young et al., and appeal was had therefrom to the district court, where the judgment of the probate court was affirmed. •

' The questions presented for our consideration are: (1) Was Jennie Amy lawfully divorced from her first husband, Elliott Butterworth? (2) Did the estate, come from decedents father or mother? (3) If the divorce was valid, is Jennie Amy the sole heir of decedent, or do his half brothers and sisters share in the estate?

1. In support of ber contention that she was the sole heir of deceased, and had been lawfully divorced from her former husband, Jennie Amy testifed that she was married to deceased in 1886, and lived with him as his wife until his death. During this period she bore him two children, both of whom died prior to his decease; that in 1876 she married one Elliott Butterworth, and thereafter was divorced from hind. Elliott Butterworth testified that he was married to Jennie Amy, and that, when she instituted divorce proceedings, he was a resident of Franklin, Idaho; that he received a summons from the probate court, and also at least six copies, each of a different issue, of the Silver Beef Miner, a newspaper, containing a copy of the summons; and that he cut the notices out (five of which witness produced in court). He also stated .that he believed the divorce to be valid, and the following year married •again, and had lived with his wife continuously until the present; that she had borne him seven children. The original complaint, duly verified, and which charged desertion-.upon the part of the defendant in that action, together with a decree of the court rendered in the case, were offered, and also a copy of the Silver Beef Miner, of the issue of July 30, 1879, showing publication of service in due form. Counsel for Boyal D. Amy et al. and Adelia Young et at. objected, claiming, among other things, that they were incompetent, because the record showed no •affidavit or order of publication, and no proof of service ■of summons. The proceedings of the probate court showed that the attorney for plaintiff filed an affidavit, averring .that defendant Elliott Butterworth was a nonresident of Utah; that his last know£ place of residence was Franklin, Idaho; and prayed for service by publication. The affidavit of publication was made by the publisher of the Silver Beef Miner, and stated that “he has within the last forty days forwarded to the defendant four different copies of the above-named paper, at four several times, containing summons in the above-entitled action, and- that said summons was a copy of the .same issued by the clerk of the probate court of AVashington county, territory of Utah, and that' the same was addressed to the defendant in the above-entitled action at Franklin, Idaho territory.” A certified copy of the minutes of the probate court showed that the case was heard September 3, 1879, and_ that; the affidavit of the publisher was presented as “proof of publication of summons;” that plaintiff appeared in person, and by her attorney, and offered testimony; and that the court ordered decree to be entered for plaintiff. Attached to a certified copy of the minutes was the certificate of the clerk “that the foregoing are all the papers which are filed in said cause.” Counsel for Jennie Amy objected to the introduction of any of the papers in said cause, excepting the complaint and decree of divorce, and counsel for the other parties objected to any of the papers being received. The court finally sustained the latter’s objection, holding that the statute relating to publication of summons had not been followed, and that the divorce was invalid.

Did the court have jurisdiction to render the decree in the case? This involves the question of what- is sufficient to constitute substituted service. The statute of Utah in force at that time provided that “when the fact of non-residence shall appear by affidavit to the satisfaction of the couyt, and it shall in like manner appear that a cause of action exists against defendant, or that he is a'necessary party to the action, the court may grant an order that the service be made by publication of summons, and the order shall direct the publication to be made in some newspaper to be designated, as most likely to give notice to the person to be served. Proof of service shall be the affidavit of the publisher showing the same, and an affidavit showing deposit of a copy of the summons in the post office, if the same shall have been deposited. The publication shall be inserted four times consecutively, the first insertion being at least forty days before 'the time for answer, and a copy of which shall be immediately deposited, postage prepaid, in the post office, directed to defendant at his last known place of residence or business.” The decree rendered in the cause contains a recital of due service of process by publication upon the defendant; and the appellant Jennie Amy contends that the probate court is a court of record, and in this collateral proceeding the judgment therein rendered cannot be impeached; that the record imports verity; and that any of the papers which may be found in the files cannot be received to contradict the recital of due service.

Respondents claim that, when jurisdiction is to be obtained by publication against a nonresident, there is no presumption in favor of the record, and jurisdiction does not attach unless the statute is strictly followed. It becomes necessary to determine whether the probate court was a court of superior or general- jurisdiction. Prior to -1874,, under various acts of the legislature, the probate courts possessed common-law and chancery jurisdiction, and authority to try .and determine criminal cases. While many of these enactments conferring this jurisdiction upon such courts, were unconstitutional, they indicate the purpose of the legislature to treat them as courts of general jurisdiction. By the Poland bill they were shorn of all civil, chancery, and criminal jurisdiction, excepting in divorce proceedings. From the earliest history of the territory, these courts have exercised jurisdiction in divorce cases, and, though Congress stripped them of powers theretofore exercised, it did not deprive them of jurisdiction in this class of cases until 1887. They were courts having a seal, clerk, and kept records of tbeir proceedings; and the general procedure act, governing district courts, was applicable to them. Orders and writs were issued by the clerk under the seal of the court. This, we think, constituted them courts of record. Vassault v. Austin, 36 Cal. 696; McCauley v. Fulton, 44 Cal. 360; Robinson v. Fair, 128 U. S. 87, 9 Sup. Ct. 30; Van Fleet, Coll. Attack, §§ 814-827.

It is often stated that the presumptions of law are in favor of the jurisdiction and of the regular proceedings of superior courts, — of courts of general jurisdiction, proceeding according to the course of the common law; but this statement does not aid us much in determining what are courts of general jurisdiction. The term “general jurisdiction” would imply unlimited powers, but we have no courts of unlimited powers in this territory. A court of record, proceeding according to the regular ordinary course of proceeding of the territorial jurisdiction, and whose judgments may be reviewed by writs of error or appeal, is a court whose proceedings and judgments import verity, and, until reversed, will protect those obeying them. Mere special tribunals, created for some special or temporary purpose, governed by some special rule or proceeding, are not courts of record, and cannot claim such immunities for their judgments or acts. “The true line of demarcation between courts whose decisions are conclusive if not reversed and those- whose proceedings are nullities if the jurisdiction does not appear of their face is this: A court which is competent by its constitution to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in their proceedings the facts and evidence on which it is rendered, whose record is absolute verity, and not to be impugned by averment or proof to the contrary, is of the first description. There can be no judicial inspection behind the judgment save by appellate power.” Grignon v. Astor, 2 How. 341; Borden v. State, 54 Am. Dec. 221.

The probate court had the power to hear and determine “the class of cases confided to it by the legislature, and it is not saying too much to ayer that courts dealing with •divorce proceedings and the settlement of estates of deceased persons, at least so far as their effect on property rights and social relations are concerned, are as important as any courts with which we have to deal. We think that every principle of justice dictates that the same presumption should attach to their proceedings as other courts. For the repose of titles, the security of property, and the interest of the public, a rule should be 'adopted which would render secure from collateral attack their proceedings. At any rate, we see no good reason why a different rule should be applied to their' judgments than governs decrees of district courts. In one view, the probate court had unlimited jurisdiction over divorce cases. It is true •such cases could be removed to the district court, or; after final judgment, an appeal would lie; but it had jurisdiction to render a final decree and judgment. “The word limited5 seems to be used sometimes carelessly instead of the term ‘ special/ for I take the true distinction between •courts to be such as possess a general and such as have only a special jurisdiction for a particular purpose, or •clothed with special powers for the performance of specific duties, beyond which they have no manner of authority; .and those special powers to be exercised in a summary way, either by a tribunal already existing for general purposes, or else by persons appointed or to be appointed in •some definite form. Some tribunals, with special powers for adjudication in particular cases, under the various names of 'commissioners/ 'surveyors/ 'appraisers/ 'committees/ 'contractors/ 'overseers/ and the like, abound in our statute books, little or in no wise relating to - the general administration of justice whose modes of proceeding are prescribed by the statute by which they are erected; and unless their proceedings, on the face of them, show a compliance with the directions required by the statute under which they act, it never could be known whether they acted within their jurisdiction or exceeded it.” Obert v. Hammel, 18 N. J. Law, 73.

Counsel for respondents concede that the probate court, at the time this decree was rendered, was a court of general jurisdiction in matters pertaining to the guardianship of minors and the administration of estates of decedents, but, as we understand his position, in dealing with divorce cases it was a court of special or limited jurisdiction. We see no good reason for holding it to be an inferior court while adjudicating questions of equally as much, if not greater, importance, while its proceedings were being conducted in conformity with the general practice prevailing in courts of superior jurisdiction. Because, by special enactment, jurisdiction is conferred upon a tribunal, it does not necessarily follow that such tribunal thereby becomes one of special or limited jurisdiction. In many of the states there has been special legislation regarding the subject of divorce. Indeed, the subject has been taken from ecclesiastical courts, and in some jurisdictions the legislatures have been prohibited from granting divorces. In other words, by special legislation the authority to determine the matrimonial status has been referred to certain courts; but, because of this character of legislation, we do not think the courts exercising the jurisdiction conferred are of special or limited jurisdiction, and the judgments rendered therein entitled to different presumptions than followed in determining other cases. The distinction is obvious between conferring jurisdiction over a new subject-matter or a class of cases, to be conducted in the manner prescribed in the ordinary course of procedure of the court, and in conferring on the court special powers, to be exercised in a special manner. The case relied on so strongly by respondents seems to recognize this principle: “ When the special powers conferred are brought into action according to the •course of that law [common law] and chancery proceedings by regular process and personal service, where a personal judgment or decree is asked, or by seizure or attachment of the property, where a judgment in rem is sought, the same presumption of jurisdiction will usually attend the judgment of the court, as in cases falling within its general powers." Galpin v. Page, 18 Wall. 371.

Regarding probate courts as courts of general jurisdiction, the question that naturally suggests itself is, what presumptions attend such courts? And, first, it is to be •observed that probate courts had jurisdiction to determine the matrimonial status of persons. It had jurisdiction of the subject matter. Being a court of competent jurisdiction, its judgment cannot 'be treated as a nullity, even though there be irregular process, until reversed; for “there is no principle better settled than that every act of a court of competent jurisdiction shall be presumed to have been rightly done until the contrary appears. This rule applies as well to any judgment or decree rendered in the various stages of their proceedings, from their initiation to their completion, as to their adjudication that the plaintiff has a right of action. Every matter adjudicated becomes a part of the record, which thenceforth proves itself, without referring to the evidence in which it has been adjudged.” Voorhees v. Bank, 10 Pet. 472. The supreme court of North Carolina, in an opinion by Chief Justice Ruffin, speaking of a title, based on attachment and .garnishment against _ an absconding debtor, says that “the general rule has not been questioned by defendant's counsel that a judgment of a court having jurisdiction of the subject-matter, and proceeding according to the course of the common law, * * * cannot be collaterally impeached; but, until it be set aside by the same court, or reversed in a superior tribunal, is conclusive. Such is unquestionably the rule of the law. The reason is, the judgment itself is an evidence of the right determined in it, or debt recovered, and is evidence so high that a denial of the right can only be made in the form of an appeal denying the existence of the record alleged. * * *• But we are not aware of any instance in which the subject-matter is within the jurisdiction, and a cause is once-constituted in a court of record that the judgment is not conclusive between the parties, or any other plea admissible-except mil tiel record; and that without regard to the-process by which the action was commenced.'’'’ Skinner v. Moore, 30 Am. Dec. 155.

After determining that the court has jurisdiction of the subject-matter, the next inquiry is, did it have jurisdiction of the person? In collateral proceedings this question can only be determined by an inspection of the record. If it is silent, then the presumption follows that what ought to-have been done was not only done, but rightly done. In a collateral attack, the omission to affirm the jurisdictional fact upon the record will be supplied by the presumption that the court acted with due authority, and its judgment will be as valid as though any fact necessary to jurisdiction affirmatively appeared. But the, record in this case is not silent upon this jurisdictional question. The decree-of the court recites, among other things, “that the cause came on regularly for hearing, and. that it appeared to the-court that said defendant was duly served with process by publication.-” These findings are as conclusive upon all parties in a collateral proceeding as any adjudication of the court can be. It must be presumed that they were supported by sufficient testimony not set forth in the record. “ Thus, though the return of the summons against A. B. certifies a service of the summons upon C. D., and the judgment states that A. B. has been summoned, the record is not necessarily contradictory. The error in the service of process may have been corrected by service of summons on the proper persons, and, since statement to-this effect is made by the court, it will be presumed that it acted upon ample evidence, and with due deliberation,before making such statement; and the judgment will be impregnable to any collateral assault.” 1 Freem. Judgm. § 130. Mr. Freeman further states that a finding or a recital showing that the court had jurisdiction is, in the vast majority of the states, not disputable when a judgment based thereon is drawn in question collaterally. Accordingly, it has been held that the fact that summons served by publication omitted the name of one of the defendants, to whom property had been assessed, was not. fatal to the decree, because, from the recital of due. service, it was conclusively presumed that the court had sufficient proof of service, though the judgment roll failed to disclose it. Reily v. Lancaster, 39 Cal. 354; Branson v. Caruthers, 49 Cal. 375. And a recital in proceedings by an administrator to sell land that proof was made “of the service of notice according to provisions of the statute ” rvas held sufficient against collateral attack. Bowen v. Bond, 80 Ill. 351. A recital that “due notice has been given to the defendant” cannot be contradicted in a collateral action. Richards v. Skiff, 8 Ohio St. 586. And, where a probate record of the final settlement of an administrator showed personal appearance.of all the heirs by name, they were not allowed to contradict it in a collateral proceeding. Hardy v. Gholson, 26 Miss. 70; Van Fleet, Coll. Attack, § 479.

In Brickhouse v. Sutton (N. C.), 5 S. E. 380, the court says: “Every intendment is in favor of the action of the. court and its sufficiency. The ascertainment and recital of facts in the record by the court imports verity and binding effect, and must be so treated for all proper purposes of the action, till, in some proper way, the action of the court shall be successfully impeached. Thus, in this case it must be taken that the court, acting upon proper evidence, ascertained and set forth in the record the important fact that the defendants in the proceeding in question were served with process against them; that is, served regularly and effectually.” And in Goodell v. Starr, 127 Ind. 200, 26 N. E. 793, the court follows the decision just referred to, and states that “the cases of Quart v. Abbett (Ind. Sup.), 1 N. E. 476 [and others cited], lay down that which we regard as the correct rule on that subject. When notice is given by publication, the judgment of the court, acting upon such notice, that the publication and the affidavit upon which it is based are sufficient to give it jurisdiction, is conclusive upon all the parties as against a collateral attack.” And in the case of Goodwin v. Sims (Ala.), 5 South. 587, it is stated that “the rule deducible from these decisions is that when the court, by the recitals in the decree, ascertains the jurisdictional fact, such adjudication is final and conclusive when the decree is collaterally assailed; and, if the decree is silent, the jurisdictional fact may appear from other parts of the record. As the entire record imports absolute verity, the recitals of the decree may be explained, limited, or qualified by other parts of the record. The entire record may be looked to for the purpose of ascertaining the jurisdictional facts, when there is no finding by the, court, for jurisdiction is acquired from the facts as they appear in the entire record; but’ when the power to ascertain the jurisdictional fact is conferred on the court, and the court adjudges that it has jurisdiction, it is not overcome or destroyed because other parts of the record may not be sufficient to uphold such finding.” 1 Black, Judgm. §§ 273, 274, 278; 1 Freem. Judgm. §§ 126, 132; Hall v. Law, 102 U. S. 464; Adams v. Cowles (Mo. Sup.), 8 S. W. 711; Kinney v. Lewis, 2 Utah, 517; Callen v. Ellison, 13 Ohio St. 454; Shawhan v. Loffer, 24 Iowa, 226; Nash v. Church, 10 Wis. 244; Blasdel v. Kean, 8 Nev. 308; Davis v. Robinson, 70 Tex. 397, 7 S. W. 749; Waterhouse v. Cousins, 40 Me. 333.

Kespondents contend, however, that the recitals in tbe -decree are contradicted by other papers appearing in the record. In order to determine what papers are a part of the record, reference must be made to the Compiled-Laws -of 1876. The law in question did not require the filing of the .affidavit or order of publication. Section 1438 provides that, “immediately after- entering the judgment, the clerk shall .attach together and file the following papers, which .shall constitute the judgment roll: Thb complaint, the summons, with the affidavit of proof of service, and a copy of the judgment.” It has been held repeatedly in California that proof of service does not include the affidavit or order of publication. Sharp v. Daugney, 33 Cal. 512; Hahn v. Kelley, 34 Cal. 404; Quivey v. Porter, 37 Cal. 464. We .adopted the statute just referred to from California with this construction, and will therefore follow the interpretation placed upon it by the California courts. People v. Ritchie, 42 Pac. 209, ante, p. 180; Suth. St. Const. § 356. By amendment-, the affidavit and order of publication are now required to be made part of the judgment roll. The affidavi't for publication and the order of the court issuing thereon not being a part of the judgment roll, the court will not look into the record to ascertain whether or not they were properly made or filed. Their absence from the files of the cause is immaterial, and cannot be proved to .overcome the presumption of regularity. In Hahn v. Kelley, supra, the affidavit and order of publication were -offered for the purpose of .contradicting the presumption of legal service on which judgment had been rendered, but the court say: “ So, for the purpose of determining whether the want of jurisdiction is shown by the record, we can only .look to the summons, the affidavit of the printer, the complaint with the default indorsed thereon, and the judgment. The affidavit, made for the purpose of obtaining an order for publication, and the order of the court directing publication, for all the purposes of the question before us, must be disregarded, or, in other words, presumed to have •been all that the law requires.” See Harvey v. Tyler, 2 Wall. 344; Hall v. Law, 102 U. S. 463; Applegate v. Mining Co., 117 U. S. 269, 6 Sup. Ct. 742; Estate of Newman, 75 Cal. 213, 16 Pac. 887.

We again quote from Hahn v. Kelley: “ We consider the true rule to be that legal presumptions do not come to the ' aid of the record, except as to acts or facts touching which the record is silent. Where the record is silent as to what was done, it will be presumed that what ought to have been done was not only done, but rightly done. If the record merely shows that a summons was served on the son of defendant, it will not be presumed that it was served on defendant. If the affidavit of the printer shows that the summons was published one month, it will not be presumed that it was published three. To avoid any misapprehension, we deem it proper to add that so far we have assumed, for the purposes of the argument, that the record, aside from that portion of it which is denominated the 'proof of service/ is silent upon the question of service; but it may happen that other portions of the record may also speak upon that question. If so, what they say is not to be disregarded. On the contrary, in determining the question whether a want of jurisdiction is apparent upon the face of the record, we must look to the whole of it, and report the responses of all its parts. To illustrate: Suppose that portion of the judgment roll denominated the ‘ affidavit of proof of service ’ shows that personal service was made npon the son of defendant,' and the remainder of the record says nothing about service; we then have a want of jurisdiction appearing upon the face of the record. But suppose the judgment states that the defendant appeared, or that personal service was made upon him, or something else that is equivalent, as it frequently does; the opposite result follows, for the record cannot lie, and it appears that the father as well as the son had been served, which may well have been the case. * * * So in a case of a service by publication, if the affidavit of the printer states that the summons was published one month, and yet the court, in its judgment, states that it was published three, or that service has been had upon defendant, it will be presumed, that other proof than that contained in the judgment roll was made, for not to so presume would be to deny to the reeord that absolute verity which must be accorded to it.”

We think that the court having found, judicially, that service was legally made upon the defendant Butterworth, in this collateral proceeding recourse could not be had to the files in the case, aside from the judgment roll, and that no evidence would be admissible other than that contained in the judgment roll' clehors the recital in the judgment. The question then arises, is there .anything in the affidavit of publication contradictory of the recitals in the decree? We think not. The affidavit of service is rather one of posting. All that is there stated is entirely consistent with the recitals in the judgment.. The affiant may have mailed the papers as stated in- the affidavit; but his affidavit does not disprove the idea that the publication was made four times consecutively, or that the first insertion was at least 40 days prior to the date for answer. The affidavit is not proof that the only publication was as stated therein. There may have been other affidavits showing publication in four consecutive issues of the paper, and that the first publication was at least 40 days before the time for answer. This affidavit is silent upon these points; and as stated in the opinion from which we have just quoted, if the affidavit of the printer states that the summons was published one month, and yet the court in its judgment, states that it was published three, it will be presumed that proof other than that contained in the judgment roll was made. Indeed, from the testimony of Butterworth, it is quite apparent that the affidavit did not contain a statement of all that did actually occur with reference to the publication of the summons.

We think there was nothing in the judgment roll contradicting the recitals in the judgment, and that the absence of the order of the court for publication in no manner vitiated the decree rendered in the case; and it is to be noted here that, notwithstanding the certificate of the clerk that the papers above referred to were the only ones filed in the cause, there was nothing requiring the filing of the order of publication, and the certificate is not incompatible with the presumption of the existence of such order, duly made by the court. The case of Coit v. Haven, 30 Conn. 195, is instructive upon this question. Service was constructive, as appeared from the return of the officer, the writ having been left at defendant’s house. The language of the judgment was: “This action came to the present term of this court.” The parties against whom it was presented, in opposition to the record, for the purpose of showing that the judgment was void, offered to prove by defendant in the judgment and others that at the time when the copy of the writ was left in service by the officer, as claimed, at his usual place of abode, he was not an inhabitant of the town or of any place in the state, and that the writ never was in any way served; and that, at the time it was claimed to have been served, he was residing out of the state. This testimony was rejected.

The court say: “But counsel for defendant urged the extreme hardship to which a party may be subjected if he may not deny and disprove the service of the writ, when he can clearly show in fact no service was ever made on him, and that he never had notice of the suit in any form, and never heard of the judgment against him until it was made the ground of an action.” They say with great emphasis, and the argument is certainly a forcible one: “Can it be that the clerk of the court may fabricate a record, or an officer make a false return of service, and yet there be no escape for one who is thus, by a judgment in a suit, made heavily indebted or found guilty of a wrong, when in fact he is perfectly innocent, and never owed the debt, and could show it clearly if he had a chance? * * * It is so necessary that confidence should be reposed in courts of a high character, as well as the records of such courts, that on the whole, and in view of all the considerations affecting the subject it is the only safe rule to give the decisions of courts of general jurisdiction full effect so long as they remain in force, rather than to leave them open to attack in' every way and on all occasions. Being domestic judgments, they can, if erroneous, be reviewed by proceedings instituted directly for the purpose, and reversed on error or by new trial; and, if the danger is imminent and special, relief can be temporarily, if not finally, obtained by application to a court of equity. * * * Any other rule with regard to judgments of such courts would be attended with great embarrassment, and would be very dangerous in its general operation. The general good clearly requires, and has therefore established the rule, that domestic judgments of courts of general jurisdiction cannot be attacked collaterally.”

In Illinois it was held that where a decree recited due. and legal process bad been made, and the process fonnd in the record was issued three terms before, and showed a defective service, it was presumed that another process had been issued and served, as the time had been sufficient within which to do it. Mulvey v. Gibbons, 87 Ill. 367. And in another case, where the summons found among the papers was returnable at the July term, upon which the service was too short, the court held that that would not control a recital of service made at the August term, as the presumption was that a new writ had been issued, and duly served. Matthews v. Hoff, 113 Ill. 95. The affidavit for publication is in the nature of evidence, and its sufficiency cannot be questioned in a collateral proceeding. Banta v. Wood, 32 Iowa, 469. From the service of process the court has jurisdiction, and, because of some irregularity or defect in the service, ordinarily the judgment would not be void. In the case of Sargent v. Bank, 12 How. 378, a papór was found in the files purporting to show how notice was given of service of process, and which was contradictory of the recital in the judgment. It was held to be no part of the record, and could not be received to impeach its verity. The court there say: “The real record informs us that legal and sufficient notice was given to the heirs of Samuel Sargent, but whether by this paper or by what other mode, except that it was legal and sufficient, we are not told, and are not at liberty in this case to indulge in inferences against the verity of the record. It is a principle well settled, too, in judicial proceedings, that, whatever may be the powers of a superior court in the exercise of regular appellate jurisdiction to examine the acts of an inferior court, the proceedings of a court of general and competent jurisdiction cannot be properly impeached and re-examined collaterally by a distinct tribunal, one not acting in the course of appellate power. To permit the converse of this principle is to unsettle nine-tenths of the rights and titles in any community, and lead to infinite confusion and wrong.” In line with the expressions in Hahn v. Kelley, it was held that when the statute provided that the affidavit of the printer or publisher shall be sufficient evidence of publication,” and the certificate of the publisher was not verified,. the statute did not make the affidavit exclusive proof of service, and that, •as the record contained a recital of due proof of service, the presumption was that other proof was given. Raley v. Guinn, 76 Mo. 263; Sargeant v. Bank, 4 McLean, 339, Fed. Cas. No. 12,360; Van Fleet, Coll. Attack. §§ 835, 836.

We do not mean in this opinion to decide what defects in service would^ in a collateral proceeding, be sufficient to overthrow the presumption of verity. Eeference has •been made more or less to authorities opposite to the general question, but the conclusions which we reach are based on the facts of this particular case and the equities presented for our consideration.

Respondents also contend that, no matter what presumptions of regularity attend a judgment, if it appears fhat it was taken against a nonresident the presumption •ceases. In support of this view, Galpin v. Page, 18 Wall. 365, is cited. It must be remembered that in that case there was no recital of due service’ of process, and the decree introduced had been reversed by the supreme court •of California, upon the ground that service was insufficient to give jurisdiction; also, the decree was introduced in a federal court 'as a basis for relief, the granting of which, under all the circumstances, would have been inequitable and unjust. It seems from a careful reading of the case that the decree would still have been held good as to the rights of third parties having equitable interests; and that the court regarded it, at least for some purposes, as merely voidable. Even if it should be conceded that, the ftct of nonresidence being apparent upon the record, the presumption of verity does not attach, could it not with propriety be argued that this presumption would be reinstated and entitled to its legal effect by the solemn adjudication in the decree that due service had been made? It would seem there must be a distinction between cases where the judgment is silent about service and one where it directly affirms the service as a jurisdictional fact. Many of the cases cited in respondents'’ brief in support of this contention, present wholly different features from those existing in the case at bar. In the case of Thompson v. Whitman, 18 Wall. 457, a judgment which had been rendered in a special proceeding, as well as in a foreign suit, was under consideration. In the -case of Nolle v. Railroad Co., 147 U. S. 173, 13 Sup. Ct. 271, the ques-. tion before the court was one of presumptions merely, and not the effect of recitals in the decree; and the case of Romaine v. Insurance Co., 28 Fed. 625, does not present the question of collateral attack. Cissell v. Pulaski Co., 10 Fed. 893, involved the question of a judgment rendered in a special proceeding.

In the case at bar the validity of a domestic judgment, is involved, and the question of special proceedings is not-presented. In saying this we are not unmindful of the-fourteenth amendment to the constitution, and the construction that has been placed npon it. Jurisdiction can be obtained by constructive service, and the judgment, rendered is “ due process of law.” The state is sovereign. It has a right to provide for bringing into its courts those whose rights are involved or for the effectual adjudication of the rights of others whose ajDpearance may be necessary. It has the right to provide tribunals to determine the matrimonial status of persons domiciled within its limits, and such a determination is a judgment in rem. Of coffrse, a personal judgment cannot be rendered against a nonresident without personal service. Pennoyer v. Neff, 95 U. S. 714. Why, in a collateral proceeding, a court should attach greater inviolability to a domestic judgment rendered against a resident than one obtained against a nonresident, is difficult to understand. In passing upon the questions before it, its proceedings are in the same general manner and according to the same general practice. • In one case its judgments import verity. According to many authorities in the other case, its judgments are subject to collateral impeachment, and no presumptions of verity attend them. It seems folly to predicate. ;this distinction upon the assertion that constructive service was unknown to the common law. Conceding this to be true, what follows? Our courts are creatures of statute. Their powers and their proceedings are largely determined by legislative enactment. Service -of summons upon residents is provided for by statute. Perhaps no greater power was conferred upon the courts by these enactments, but a different mode of exercising an old and inherent power was pointed out. It seems to the writer' of this opinion that Galpin v. Page is founded upon the fallacy that constructive service is in derogation of some venerated principle, and to be> regarded with disfavor. The growth of .civilization, the development of commerce, the establishment of business relations, the homogeneousness of the people of our sister states, seem rather to'commend this practice of obtaining jurisdiction of the person, because of the necessities that arise, and the great inconvenience, not to say embarrassments, that would result if jurisdiction could only be obtained by personal service. Constructive notice was well known both to common law and chancery practice, and it is therefore a proceeding “ according to the course of the common law.” 3 Bl. Comm. 283, 444; 1 Freem. Judgm. § 127; Hahn v. Kelley, 34 Cal. 417.

Why, on principle, two judgments in the same court of general jurisdiction, in due form, should be entitled to different presumptions respecting the verity of the record, simply because one is against a nonresident, where the proceeding is in rem, is a question the proper solution of which no court has successfully attempted. Mr. Freeman says that “the tendency of modern decisions is to strengthen the position that the orders and proceedings of courts of general jurisdiction, where process is constructively served, are supported- by the same presumptions as when the court proceeds upon personal service, and can no more be avoided for mere errors and irregularities than can its other orders and judgments.” 1 Freem. Judgm. § 127. See Fanning v. Krappfi, 68 Iowa, 244, 26 N. W. 133; Dowell v. Lahr, 97 Ind. 146; Quarl v. Abbett, 102 Ind. 233, 1 N. E. 476; Williams v. Moorehead, 33 Kan. 609, 7 Pac. 266; Williams v. Hudson, 93 Mo. 524, 6 S. W. 261; Stewart v. Anderson, 70 Tex. 588, 8 S. W. 295; Adams v. Cowles, 95 Mo. 501, 8 S. W. 711. “The authorities upon this side of the question have apparently received an unexpected accession from the Supreme Court of the United States. From the language employed by that tribunal, we understood it to be firmly committed to the doctrine that, when it appeared that defendant was served with process by publication, no jurisdictional presumption could be indulged in, in favor of the judgment; but this. language is now limited in its application to cases in which it does not appear that the court made any order justifying such publication. * * * On the other hand, if it is shown that the court ordered such service, its judgments are supported by the same presumption as in other cases, unless the statute requires that ¡evidence of snob jurisdictional fact shall appear by record, and it does not so appear. If it [this decision] means that, except as to matters which the statute has expressly required to be a part of the judgment or judgment roll, "the court must always, presume that jurisdiction was obtained where the record does not rebut such presumption, then this decision is an important aid to the ultimate establishment of. the rule that judgments of courts based upon constructive service of process are supported by the same presumptions as if such service were personal.” 1 Freem. Judgm. § 127; Applegate v. Mining Co., 117 U. S. 255, 6 Sup. Ct. 742.

It would seem that the decision in the case of Applegate v. Mining Co., supra (especially in view of what was said in the case of Sargeant v. Bank, 12 How. 371, that no papers could bé looked to in order to determine the sufficiency of. publication but such as by statute constituted the judgment roll), clearly announced the rule that the court will presume jurisdiction was obtained over the defendant where the judgment roll does not rebut that presumption. In Applegate v. Mining Co., the' statute under •which the proceeding resulting in the judgment in question had been conducted authorized the court to appoint a day for the absent defendants to enter their appearance in the suit, and required a copy of its order to be published “in the Kentucky Gazette or Herald, and continue for two months successively, and shall also be published •on some Sunday immediately after divine service in such church or meeting house, as the court shall direct, and another copy shall be posted at the front door of said courthouse.” In support of the judgment, extrinsic evidence was offered of the publication .of the order in the Kentucky Gazette in nine successive weekly issues of that paper, but there was no evidence of the publication of the order in church, or its posting at 'the front door of the courthouse. The court said: “But the record contained no proof of publication and posting notice, as required by statute; -and it is insisted by the defendants in this case that the record itself must show the publication and posting notice as required by law, otherwise the jurisdiction of the court does not appear, and its decree is absolutely void. 'While it must be conceded that, in order to give the court jurisdiction over the persons of the defendants, all the steps pointed out by the statute to effect constructive service on nonresidents were necessary; yet it does not follow that evidence that the steps were taken must appear in the record, unless, indeed, the statute expressly or by implication requires it. The court which made a decree in the case of Clark v. Conklin was a court of" general jurisdiction. Therefore every presumption not inconsistent with the record is to be indulged in, in favor of its jurisdiction. * * * It is to be presumed that the court, before making this decree,- took care to see that its orders for constructive service, on which its right to make the decree depended, had been obeyed. That this presumption, is authorized will clearly appear by the following cases:

In Harvey v. Tyler, 2 Wall. 328, the court stated: ‘The jurisdiction which is now exercised by the common-law courts in this country is, in a very large proportion, dependent upon special statutes conferring it. * * * In all cases where the new powers thus conferred are to be brought into action in the usual form of common law or chancery proceedings, we ap>prehend there can be little doubt that the same presumptions as to the jurisdiction of the court and the conclusiveness of its action will be made as in cases falling more strictly within the usual powers of the court.-’ In Hall v. Law, supra, the validity of the partition of lands made by a circuit court of the state of Indiana was attacked. This court said: ‘All that the statute designates as necessary to authorize the ■court to act is that there should be an application for a partition by one or more adjoining proprietors, after giving notice of the intended application in a public newspaper for at least four weeks. When application is made, ■the court must consider whether it is by a proper party, whether it is sufficient in form and substance, and whether the requisite notice has been given as prescribed. Its •order made thereon is an adjudication on these matters/ 'The case of Voorhees v. Bank, 10 Pet. 449, was an action •of ejectment, and the case turned on the validity of a sale •of the premises in controversy, under a judgment of the ■court of common pleas of Hamilton county, Ohio, in a case of foreign attachment. The sale was attacked on the ■following among other grounds: (1) Because the statute .authorizing the proceeding by foreign attachment required that an affinavit should be made and filed by the clerk before the writ issued, and no affidavit was found in the ■record; (2) because the statute directed three months’ notice to be given by publication in a newspaper of the issuing of the attachment before judgment should be entered, and also required 15 days’ notice of the sale to be given, neither of which appeared by the record to have been done; (3) because the statute required that the defendant should be put in default at ■ each of the three berms preceding the judgment, and the default entered of record, but no entry was made of the default at the last •of the three terms. But the court overruled the objections, and sustained the validity of the judgment and the .sale. It said: 'But the provisions of the law do not prescribe what shall be deemed evidence that such acts have been done, or direct that their performance shall appear •on the record. * * * This leaves the question open to.the application of those general principles of law. by which the validity of sales made under judicial process must be tested, in the ascertainment of which we do not think it necessary to examine the record in the attachment for evidence that the acts aíleged to have been omitted appear therein to have been done/’”

The court announces, as a result of these opinions, that, “where a court of general jurisdiction is authorized in a. proceeding, either statutory or at law or in equity, to-: bring in, by publication or other substituted service, nonresident defendants interested in or having a lien upon the property lying within its territorial jurisdiction, but is. not required to place proof of service upon the record, and the court orders such substitutive service, it will be presumed, in favor -of the jurisdiction, that service was made-as ordered, although no evidence thereof 'appears of record, and the judgment of the court, so far as it affects such property, will be valid.” See Grignon v. Astor, 2 How. 319; Lessee of Boswell v. Sharp, 15 Ohio, 447; Van Fleet, Coll. Attack, §§ 388-396, 834; Essig v. Lower (Ind. Sup.), 21 N. E. 1090.

From these authorities it would seem that judgments-rendered against nonresidents were entitled to the same-presumptions as in cases of personal service. The case of Galpin v. Page seems to be at variance with the cases-just cited, and has been substantially overruled, although this is denied by the court in the case of Applegate v. Mining Co. The rule announced in the case just cited and in Hahn v. Kelley is, we think, for the best interest, of the public generally, and essential for the security and repose of titles to property as well as personal rights. Accordingly, we are of the opinion (a) that the affidavit, upon application for order of publication, and the order-based thereon, under the Compiled Laws of 1876, are not. a part of the record, and their existence or nonexistence-cannot be appealed to in this collateral attack to impeach the verity of the record; (b) that, the recital of service of process not being contradicted by anything appearing in. the judgment roll, the presumption is that the court acquired jurisdiction of the defendant, and in this collateral proceeding the decree of divorce there rendered is unassailable and conclusive.

In reaching these conclusions we have in mind the rule, that collateral assaults upon judgments are not favored, unless it clearly appears that the court had no jurisdiction or transcended the same, and esjiecially when the equities: are upon the side of the party attempting to uphold the validity of the decree. Head v. Daniels, 38 Kan. 12, 15 Pac. 911; Gemmell v. Rice, 13 Minn. 406 (Gil. 371); Ogden v. Walters, 12 Kan. 235.

Plaintiff was an actual and Iona fide resident of the territory. The marriage between her and Elliott Butterworth, by reason off his nonresidence, had ceased to be of any practical effect. The court had authority to determine the status of the plaintiff. It was a proceeding in retn. No property rights or children were concerned, and no personal judgment was prayed for. Notice to the defendant was not a natural right, but he was entitled to it. only by reason of the statute. Borden v. State, supra. He received notice of the proceedings. If process was irregular or the notice defective, he could have appeared and contested the proceedings. Even if the judgment were erroneous, it is invulnerable in this attack. Pettiford v. Zoellner, 45 Mich. 362, 8 N. W. 57; Estate of Newman, 75 Cal. 220, 16 Pac. 887. He was not misled or prejudiced. He regarded the decree as valid, and contracted new relations. The plaintiff, in good faith, married the deceased. Both accepted the decree of the court as valid. Neither one could question its validity. They had acquiesced in it, and had validated it, even if it were invalid. Crosby v. Probate Court, 3 Utah, 52, 5 Pac. 552; Pettiford v. Zoellner, supra; Colton v. Rupert, 60 Mich. 329, 27 N. W. 520; Hendrick v. Whittemore, 105 Mass. 26; Arthur v. Israel, 15 Colo. 147, 25 Pac. 81. After so great a lapse of time, and in view of the new relations contracted since, the court ought to indulge in any reasonable presumption that would give validity to the decree, and determine that the parties were duly separated, and the new relations were not criminal and meretricious. Wilson v. Holt, 83 Ala. 540, 3 South. 321; 1 Bish. Mar., Div. & Sep. §§ 77, 956-958, 1148, 1149; Carroll v. Carroll, 20 Tex. 741.

Sound reasons of public policy would dictate the upholding of the decree where there have been subsequent marriages, children bom, and property acquired; especially when the court had jurisdiction of the subject-matter, and when the only contention is that process was defective, though defendant had actual notice of the proceedings, and was not* prejudiced in any manner. If neither can question the validity of the decree, if both are estopped, what principle of justice in the case would permit third parties to do sor This case was tried in a court of equity. We cannot see why, when the defendant is'not complaining of any wrong done, and when, in fact, no wrong was done and no fraud perpetrated in procuring the divorce, and he had full knowledge of the proceedings, some third party, in a collateral proceeding, can question the judgment because of defective process. It is a matter of common knowledge that in many of the proceedings of probate courts of this territory there have been informalities, and perhaps serious irregularities, but for years their adjudications have been acted upon, and property rights have been acquired. Hundreds of divorces have been granted, and new relations have been entered into. If we were to declare this decree invalid, it would bastardize many children, disrupt families, unsettle- titles, and bring litigation and trouble to many homes. We think, in addition to the reasons heretofore assigned for upholding this decree, the ones just suggested are entitled to consideration, and add strength to the conclusions just reached.

2. To determine who are the heirs of the decedent, it becomes necessary to ascertain the ancestor from whom the estate came. Eoyal D. Amy. et al. contend that the estate descended from Dustin Amy, father of decedent; while the other parties to this controversy assert that it was originally acquired and owned by the mother of the decedent. On the trial, counsel for Adelia Young et al., offered the declaratory statement of decedent’s mother, dated January 8, 1872, directed to the probate judge of Salt Lake county, by which she claimed to be the owner and occupant of the premises in controversy, and petitioned to be adjudged the occupant and owner thereof; also, an order of the probate judge citing all persons interested in said property to appear, and the order of the court, which it seems was not signed, reciting that “the case duly came on for hearing, upon the application of the party; and upon investigation thereof, the evidence adduced, the affidavit herein filed, and the allegations of the parties, the court is of the opinion, and it is so ordered and adjudged, that the said Lavira 0. Smith [Amy] is the original owner of [then follows a description of the premises in controversy]; and it is further ordered that certificate of title issue in accordance therewith.” Counsel for Eoyal D. Amy et al. objected to its admission, for the reason that it was not signed by the probate judge, and for the further reason that it does not contain a finding on the evidence offered in respect to the claim of decedent’s mother for the premises in question, and that the reóord is not complete. Objection was overruled. Thereupon a deed from Daniel H. Wells; mayor of Salt Lake City, to Lavira C. Smith-Amy, dated April 28, 1873, was offered in evidence and received, over the objection of Eoyal D. Amy et al. Counsel for Eoyal D. Amy et al. then offered in evidence what purported to be a copy oí a deed dated September 16, 1863, executed by' Dustin Amy to his wife, decedent's mother, which contained the clause: “TJnto the said Lavira Smith, during her natural life, and after her decease to be and become the property of Oscar A. Smith [the deceased], son of said Lavira Smith, the said property being the same that said Dustin Amy received in trade from Claud Clyde,” etc. They also offered the deposition of Boyal D. Amy to prove that the deed was delivered to decedent's mother, and they claim that the property was held by Mrs. Amy as trustee for the decedent, and that the property was never owned by her, but descended to decedent from his father.

We do not agree with counsel in this position. At the time of the alleged deed, executed by Dustin Amy, he had no-interest in the property which could be charged with a future estate. He could do nothing more than transfer possession by any instrument which he might execute. Buxton v. Traver, 130 U. S. 235, 9 Sup. Ct. 509. In the case of Whittemore v. Dope, 40 Pac. 256, it was claimed that, because the property was the homestead of the deceased, his wife (who continued to reside thereon) could not hold it adversely, and that she held only a life interest-therein. The court, speaking of this claim, say: “In 1868 the land laws of the United States were extended over Utah, and the mayor's entry was made in November, 1871. * * * Thomas Cope, deceased, had no estate whatever in said lot, not teven an inchoate right. He could not devise it and give title, and it would not pass, to his heirs. No interest that he possessed could be the foundation upon which to predicate a homestead title, and out of his naked possession no estates in life or remainder could be carved.'' The case of Drake v. Reggel, 37 Pac. 583, we think, is decisive on this question. In that case George Cronyn executed to his daughter a deed of tha premises in controversy in 1865, conveying a life estate to her, with remainder in fee to such of her heirs as she might appoint. The court, speaking to the question, say:

“At the time of the execution of the Cronyn deed, the grantor had no other right or title to the land than a simple possession. The land was public land of the United States, and no statute then provided for its sale. * * * The town-site act under which title was obtained was enacted March 7, 1867, and the act of the territorial legislature prescribing the necessary regulations thereunder was passed February 17, 1869. * * * The second section enacts that, within thirty days after the entry of the town, site by the corporate authorities, they shall give a prescribed public notice thereof. Section 3 prescribes that, ‘ within six months after the first publication of such notice, each and every person * * * claiming to be the title owner, or possessoi’, occupant or occupants, or to be entitled to the occupancy or possession of such land, * * * shall file a statement in writing with the probate court of the county, containing a description of the land claimed, and the specific right claimed therein. * * * That all persons failing to make and deliver such statement within the time limited in this section, shall be forever barred from the right of claiming or recovering such land or any interest or estate therein, or any part, parcel or share thereof in any court of law or equity/ * * * On March 26, 1872, Lizzie D. Wilson filed with the clerk of the probate court of Salt Lake county her statement describing said premises, but alleges that she is entitled to a life estate in the said piece or parcel of land, remainder to her lawful heirs, and prays that a fee-simple deed may issue to her; and further referring to the Cronyn deed and the book and date of its record as a source of her right. * * * The probate court adjudged Lizzie D. “Wilson to be the lawful owner of possession of the said premises, and to be entitled to a deed thereof in fee simple. * * * But it is contended that Lizzie D. Wilson, being, as claimed, entitled to a life interest, stood in the relation of trust towards those entitled in remainder, and that the trustee having, by a breach of duty, acquired the title, equity will hold her as trustee for the remainder-men, notwithstanding their failure to file the required statement; in other words, that, although the statute attempts to bar any one so failing from thereafter claiming any estate in any court of law or equity, there is one particular- estate which such person can still claim in a court of equity. We find^nothing in the statute to warrant this conclusion. In referring to a similar statute of the territory of Colorado, the supreme court of the United States said: ‘No language could bo more explicit to make the failure to deliver the statement within the time specified a bar — an absolute bar — to the recovery of the same, however strong might be the eqnita-'ble claim to the land so lost.’ Cofield v. McClelland, 16 Wall. 335. * * * In any event, the legislature did not see fit to exempt trustees from the benefit of the statute, nor the owners of equitable estate from its bar; and the duty of the court is to. declare the law, and not to make it. * * * Appellants, having failed to file the required statement, are precluded from recovering any estate in the premises created by the Cronyn deed, and adverse to the fee-simple estate conveyed- to Lizzie D. Wilson by the mayor of Salt Lake City/’

It was the duty of the probate judge to ascertain the question of occupancy, and his adjudication and the deed issued to decedent’s mother by the mayor of Salt Lake City are conclusive in this collateral attack. Ming v. Foote (Mont.) 23 Pac. 515; Smelting Co. v. Kemp, 104 U. S. 647; Rogers v. Thompson, 9 Utah, 47, 33 Pac. 234; Society v. Dalles, 107 U. S. 336, 2 Sup. Ct. 672; Baker v. Brickell (Cal.), 25 Pac. 492.

Whether or not a trust arose in favor of decedent by the deed from Dustin Amy it is not necessary for us to determine, but, under the authorities above referred to, it is clear the legal title to the premises passed to Lavira Amy by the mayor’s deed, and that she is to be regarded as the person who first brought the property into the family. But, if it is admitted that Dustin Amy had an equitable interest in the premises, upon the death of Lavira Amy the legal estate descended to her heirs; and, where the legal and equitable estate in the same land become vested in the same person, the equitable will merge in the legal estate. Whyte v. Arthur, 17 N. J. Eq. 523; 1 Perry, Trusts, § 347. In the case of Nicholson v. Halsey, 1 Johns. Ch. 420, it was held that the equitable estate inherited from one ancestor merged in the legal estate inherited from the other ancestor, and did not open or separate at the death of the heir, and that the course of descent of the property which had been so inherited is to be determined by legal title. See Patterson v. Lamson, 45 Ohio St. 90, 12 N. E. 531; Shepard v. Taylor (R. I.), 3 Atl. 383.

3. Having determined that the- land in question was originally owned by the mother of Oscar A. Amy, and passed by descent to decedent and Lavira C. Smith, the question then arises, who are the heirs of the deceased? The statute of succession provides that, if “ the decedent leaves no issue, the estate goes one-half to the surviving husband or wife, and the other to the decedent’s mother and father in equal shares, and if either be dead the whole-of said half goes to the other. If there be no father or mother, then one-half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased person by right of representation. If the decedent leave no issue, nor husband nor wife, the estate must go to his father and mother in equal degrees, or if either be dead then to the other. * * * If the decedent . leave a surviving husband or wife, and neither issue, father, mother, brother, or sister, the whole estate goes to the surviving husband or wife.” 2 Comp. Laws Utah, p. 123. Section 2749 in the same act is as follows: ^ Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his -ancestors, in which case all those who are not of the blood of such ancestor must be excluded from such inheritance.”

Appellants Boyal D. Amy et al. claim that the statute has abolished the rule prevailing at common law, viz., that half blood could not inherit, and that, though they are the half brothers and sisters of the deceased, they are heirs to his estate, and inherit the entire property, unless Jennie Amy shall be considered his lawful wife, in which event they will be entitled to one-half. It’ is clear that, unless the section last referred to is a modification or limitation of the preceding facts, their position is correct. Subdivisions 5, 6, 7, and 8 of section 2741 would indicate that it was the purpose of the legislature to hold -the property in the family of the propositus; and section 2756, which enacts that if no issue be left by the deceased, nor husband, nor wife, and the mother be living, the estate goes to the mother,, and if the estate came to him as an advancement from his father and he be living, such estate goes to the father, seems to look to the same result. In answer to section 2749, it is claimed that it can have no .application except in cases of next of kin of the half blood and the whole- blood in equal degree; that is, if the claimant be within any of the classes expressly preferred, viz., either wife, child, parent, brother, or sister, this simple fact of near relationship to the deceased is by the statute made sufficient, without inquiring as to blood, or the-source from which the estate came. We cannot agree with counsel in the views so learnedly put forth by them nor with the decisions cited by them from 21 Mich. 229 (Ryan v. Andrews); 32 Mich. 70 (Rowley v. Stray); and 43 Wis. 167 (Kirkendall’s Estate). The statute is clear and unambiguous, and means precisely what the words import,— that kindred of the half blood are excluded from inheriting property that descended from a line in which they are not related. The word “ancestor,” as used in this connection, is construed to mean the last possessor, before the decedent; that is, the person from whom the land immediately descends to the decedent. The propositus of Oscar A. Amy and Lavira C. Smith was their mother, and, upon the death of Lavira 0. Smith, her estate was inherited by the decedent herein. The estate in question “came by descent to the intestate,” Oscar A. Amy, from his ancestors, Lavira C. Amy and Lavira C. Smith. Gardner v. Collins, 2 Pet. 89; Cutter v. Waddingham, 22 Mo. 264; Valentine v. Wetherill, 31 Barb. 660; West v. Williams, 15 Ark. 693; Wheeler v. Clutterbuck, 52 N. Y. 70; White v. White, 19 Ohio St. 534; note to Prescott v. Carr, 61 Am. Dec. 660.

Before Boyal D. Amy et al. can inherit any portion of the estate of the decedent, they must trace their blood to the propositus through whom decedent inherited the property. They cannot connect themselves in this manner with the mother of Oscar A. Amy, from whom he inherited an undivided one-half; neither can they trace their blood to his half-sister, from whom he inherited the remaining half. Perkins v. Simonds, 28 Wis. 90; Kelly’s Heirs v. McGuire, 15 Ark. 588; Den v. Searing, 8 N. J. Law, 347; Deadrick v. Armour, 10 Humph. 599. The provisions of the statute under which brothers and sisters may inherit are to be construed with reference to the section precluding kindred of the half blood from inheriting estates' descending from the ancestor of the decedent. Kelly’s Heirs v. McGuire, supra. In the cases above cited, and particularly Kelly’s Heirs v. McGuire and Cutter v. Waddingham, this question has been so exhaustively discussed,, and statutes similar to ours construed, that we feel it-would be a superfluous task to elaborate what we have said. The overwhelming weight of authority is against the views of the Michigan and Wisconsin courts, and we see no reason for departing from the rule so well-nigh universal. The statute of succession was passed in 1884, and the legislature had, presumedly, before it the almost unbroken line of authorities' sustaining the construction against which appellants contend. To the legislature must be committed the labor of changing the statute, if change is desirable. Under,our view of the statute, Jennie Amy is the sole heir of her husband.

The judgment of the lower court is'reversed, and the cause remanded, with directions to enter a decree in favor of the appellant Jennie Amy, awarding, her the entire estate of the decedent.

BaRtoh, J., concurs.