290 P. 411 | Nev. | 1930
Lead Opinion
Inasmuch as the names of the appellants were not included anywhere in the record of the proceedings and no reference whatsoever made to them by citation, notice or otherwise, and not being named as absent heirs and an attorney appointed by the court to *433 represent them, there was no semblance of notice of any kind given to appellants such as is contemplated by law. The right of inheritance, it must be conceded, is a right in the nature of a property right, and such an immunity as falls within the protection of the Fourteenth Amendment of the Constitution of the United States and the provisions of the constitution of this state, guaranteeing to every citizen that no person shall be deprived of life, liberty or property without due process of law. It is said that every person holds his rights, immunities and property under this protection. As we understand, the substance of this right is that the proceeding must be in accordance with the procedure established in the jurisdiction, which must, in the very nature of things, afford a day in court, an opportunity to be heard and a hearing before judgment, which implies the right to notice thereof. Perhaps the best exposition of this subject is that contained in the Dartmouth College case, and which has generally been adopted by text-writers and judges. It will be seen that these principles were recognized as early as 1728. See Due Process of Law by Rodney L. Mott, pages 111-113.
Attention is called to section 5899, Rev. Laws of Nevada, 1912. Among other things provided for, the petition shall state the names of the heirs, if known, and providing further that, upon the hearing, proof may supply the omission of the declaration of certain jurisdictional facts. It is apparent that the above section of the statute contemplated that notice be given of the proceedings to all heirs who were known, and also to any that might be unknown, by reference to residence, description, etc. Sections 5009 and 5030, Rev. Laws, provide how unknown heirs shall be described and how notice shall be given. It cannot be denied, unless the requirements of due process of law are nullified and held for naught, that notice in some form likely to give notice to the parties must be given, and that the same lies at the very foundation of any legal proceeding. *434
For the reasons pointed out, we respectfully submit that it was error for the trial court to sustain defendant's demurrer, and likewise error to render judgment on said order in favor of defendants. Appellants' statement that no attorney was appointed by the court to represent them in the probate proceedings is erroneous, although the record of that appointment is not before this tribunal.
In the Dartmouth College case, adverted to by appellants to sustain their argument, it appears that the question of notice was not before the court, and that no decision with respect thereto was made.
It is contended in counsel's argument that section 5899, Rev. Laws, required that the petition should state the names of the heirs, "if known." It is not averred in the complaint that the appellants or their whereabouts were known to the respondent, the court of probate or any other person or persons, and it must be presumed that if such knowledge were a fact, averment to that effect would be found in the complaint herein. Mr. Cooley has defined a presumption to be that conclusion of law which "credits the ordinary, the probable, that which is likely to have happened, or occurred," and when applied to human conduct, assumes that all persons do what is right and proper, until the contrary be shown; and as pertaining to official acts and conduct of officers relating thereto, is heightened to a degree that only a strong accusation, supported by convincing proof to the contrary, will prevail. This applies with all its force, especially in the absence of any averment to the contrary, to the question of notice as mentioned in the complaint and appellants' brief. It will be noted that counsel does not charge that notice was not given, nor does he charge that the notice given did not comply in every respect with the provisions of our statute (sec. 5866, Rev. Laws) pertaining thereto. Since there is this special provision for summoning parties in probate proceedings, sections 5009 and 5030 of Rev. Laws, having *435 reference to civil causes wherein plaintiffs and defendants are parties, are forceless.
With reference to the omission of the appellants' names from the petition, we cite the following cases: Nicholson v. Leatham (Cal.),
It is stated in the complaint that "no notice whatsoever was given plaintiffs, either actual, constructive or otherwise." This is a conclusion, and falls short of an averment that the clerk did not publish the notice, as enjoined upon him by sec. 5866, Rev. Laws. There is no averment of fraud on the part of anyone with reference to the giving of notice, or, for that matter, with the probate of the will. The fraud averred being that in procuring the will to be made. It must be presumed that that method provided by statute for probate courts acquiring jurisdiction of persons was followed and that all the duties relative thereto were performed, since there is no averment in the complaint to the contrary. Bancroft's Probate Practice, sec. 40.
To the said complaint a general demurrer was filed on the grounds that the same does not state sufficient facts to constitute a cause of action. This demurrer was sustained and, the plaintiffs electing not to amend, judgment was entered in favor of the defendants, from which an appeal was taken.
Two points are urged as grounds for reversal: First, that the petition for the probate of the will of the deceased did not state the names, ages and residences of the plaintiffs; and, second, that the complaint herein alleges that no notice was given to plaintiffs of the hearing upon said petition, both being urged as jurisdictional defects in said probate proceedings.
1. Considering the last point first, it is clear that no valid order can be entered for the probate of a will without the giving of notice to the heirs. In Re Hegarty's Estate,
Section 5860, Rev. Laws, relative to the probate of wills, provides, inter alia, that any person named as executor or executrix in a will, who accepts the trust, may present to the district court a petition for the probating thereof, setting forth in such petition the facts necessary to give the court jurisdiction, and, when known, the names, ages and residence of the heirs and devisees of the deceased. Section 5866 provides that, when such petition is filed with the *437 clerk of the court, such clerk shall publish notice in some newspaper if there is one printed in the county, if not, then by posting such notice in three public places in the county, stating in such notice the filing of such petition, the object, and designating a time for proving such will, which shall not be less than ten nor more than twenty days.
2. Is there sufficient allegation in the complaint of the failure to give notice? We have quoted the allegation of the complaint which is the basis of the contention that no notice was given.
We think there is an utter failure to allege that no notice was given. The so-called allegation is a naked conclusion. As said in 14 Ency. Pl. Pr. at page 1071: "In averring notice, the usual rule prevails that facts, and not conclusions of law, should be pleaded. A general averment that the defendant had notice is not sufficient."
The same reasoning applies to a general averment that a party was not given notice.
In Klovdahl v. Town of Springfield (Ore.),
See, also, McDaniel v. Thomas,
3. As to the contention that the petition praying for the probate of the will did not state the names, ages and residence of the heirs and devisees of the deceased, we need only say that the statute requires *438 this to be done when this information is known to the petitioner. So far as appears, the petition states the names, ages and residence of all known heirs.
Other points are made not suggested by the record, which we think it unnecessary to consider.
For the reasons given the judgment is affirmed.
Concurrence Opinion
I concur.
Concurrence Opinion
This is not a suit to contest a will after probate, but one to revoke the probate of a will upon the complaint of certain nonresident heirs of the testator, upon the ground that the court was without jurisdiction of the parties plaintiff, in that the petition filed for the probate of the will in question did not expressly mention the plaintiffs as known or unknown heirs; that plaintiffs had no notice, actual, constructive or otherwise of the probate proceedings; that they did not learn of the decree admitting the will to probate until a long time thereafter, they being nonresidents of Nevada and residents of the State of Massachusetts. The complaint further alleges that the plaintiffs being without notice and situated as they were, they were deprived of their property without due process of law. The complaint also alleges that the plaintiffs held valid and subsistent objections to the admission of the will to probate, in that at the time of its execution the testator, Alexander Pollock, was of unsound mind and incapable of making testamentary disposition of his property; that May Frances Gates, the sole beneficiary of the will well knowing the mental condition of the testator, fraudulently took advantage thereof, and induced and compelled him to execute the purported will, and that the will was made and executed under her domination and direction.
The probate of a will by a court having jurisdiction thereof is considered as conclusive as to its due execution and validity, and is also conclusive that the testator was of sound and disposing mind when he executed the will, and was not acting under duress, menace, fraud *439
or undue influence. Tracy v. Muir,
It is contended in support of the allegations of the complaint that the failure of the petition for the probate of the will to give the names and residence of the heirs of the testator deprived the court of jurisdiction to admit the will to probate. Sec. 5860, Revised Laws. This contention is untenable. The jurisdiction of the court to admit a will to probate "cannot depend upon either the petitioner acting in good faith or bad faith in omitting the names of the heirs from the petition." Nicholson v. Leatham,
Though the complaint alleges that plaintiffs had no notice, actual, constructive or otherwise, of the probate proceedings, it is admitted in argument that notice for the hearing of the petition was published by the clerk of the court, as provided in section 5866, Revised Laws, quoted in the opinion of Justice COLEMAN.
There seems to be no doubt that when the notice of the presentation for probate is made by publication, and conforms to the requirements of the statute, no other or further notice is required to give the court jurisdiction for the purpose. In Re Kelly (Neb.),
The contention that the parties plaintiff were deprived of their property without due process of law is also *440 untenable. A notice of application for the probate of a will, given by publication for a period of ten days, as provided by statute, does not operate, as to a nonresident heir having no actual notice and so situated as not to be able to receive the notice in time to appear and contest the probate on the original hearing, to deprive him of his property without due process of law. Tracy v. Muir, supra.
I am of the opinion that the complaint herein fails to state a cause of action for the revocation of the probate of the will of the testator, Alexander Pollock, deceased.
