78 P. 63
N.M.
1904

OPINION OF THE COURT.

BAKER, J.

(after stating the facts). — Had the probate court jurisdiction to determine the title to the property in dispute in the suit of Patrick Cullen against Alfred N. Randall, administrator of the estate of Leon Caron, deceased, commenced in the probate court of Santa Fe county? This is the only question in the case.

The probate court was created by the organic act, section 10 of which provides, “that the judicial power of the Territories shall be vested in the Supreme Court, district court, probate courts and in justices of the peace.” Said act further provides that “the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and justices of the peace, shall be as limited by law.” It further fixes the limitations of the jurisdiction of justices of the peace, and further provides that “the said Supreme Court and district courts respectively shall possess chancery as well as commonlaw jurisdiction.” This act is the creation of our judiciary. The jurisdiction of the several courts can not he enlarged by the Legislature. Ferris v. Higley, 20 Wall. 375; Robinson v. Fair; 128 U. S. 53; Clayton v. Utah Territory, 132 U. S. 641; Arellano v. Chacon, 1 N. M. 269. The organic act expressly conferring upon the Supreme Court and district courts chancery .as well as common-law jurisdiction, and not expressly conferring such jurisdiction upon the probate courts, it is equivalent to expressly denying probate courts such jurisdiction. Clayton v. Utah Territory, supra.

The organic act simply creating probate courts and not defining their powers and jurisdiction, we must look elsewhere to find the powers and jurisdiction of such courts. Probate courts in this Territory have such power and jurisdiction as was given to them by the common law of England, as endorsed or modified by the courts of the United States, except as limited or enlarged by statute. Webster v. Seattle Trust Co., 35 Pac. 1082; Perea v. Barela, 5 N. M. 470; Ferris v. Higley, 20 Wall. 375; Brown on Jurisdiction, p. 336; Wells on Jurisdiction of Courts, p. 293; 1 N. M. 269, supra; 128 U. S. 53, supra; 132 U. S. 641, supra. The case in the probate court of Santa Fe county was clearly a contest of title to property between a stranger and the estate. There was no other element of interest involved. Had the probate court jurisdiction to try and determine that issue? In Anderson v. Fisk, 41 Cal. 308, the court held that the judgment of the probate court that required the executor to deed to one McDaniel real estate, which it was claimed was real estate that had been conveyed to the deceased by McDaniel as security for the payment of an indebtedness due the deceased, after the said money had been paid to the executor, was a void judgment. “While probate courts have jurisdiction to determine claims to property between those interested in the estate, as it is only determining their relative interests as derived from the estate, yet they have no- jurisdiction to determine claims to specific property adversely to the estate.” Stuart v. Lohr, 22 Am. St. 150; 1 Wash. 341. “It (probate court) has no power to determine disputes between heirs or devisees and strangers as to title to property.” Buckley v. Superior Court, 102 Cal. 6, specifically reaffirming Smith v. Westerfield, 88 Cal. 388; In re Hass, 97 Cal., 232. In Marston v. Paulding, 10 Paige Chan. 40, the court said: “It is not necessary to examine the question whether the property in controversy in this case was or was not rightfully retained by the respondents as a part of the estate belonging to the decedent. For if it belonged to the appellant his proper remedy was in a different form. For the surrogate has no jurisdiction, upon a summary application to him, to compel the administrators to deliver over property to the owner thereof, which property has been taken possession -of by them as a part of the estate to be administered by them; although their claim to such property is wholly unfounded, or is merely colorable.” In the matter of the probate of the will of Robert J. Walker, deceased, 136 N. Y. (App.) 20, the court says: “Questions of. title to property have always been reserved for the common-law courts or statutory tribunals invested to some extent with their powers, where the right to trial by jury is guaranteed, except in cases of equitable cognizance.” This was a case where the surrogate sought to settle the ownership of personal property. The court further says: “We can not recall any statutory provisions which authorize the surrogate in any proceedings to pass upon the question of title to property as between a claimant and a representative of the testator’s estate. Jurisdiction in all such cases seems to have been scrupulously and intentionally withheld. If the executor has reasons to believe that any assets belonging to the- estate are detained by any person in whose possession they may be, he may make application to the surrogate for an order requiring such person to show cause why he should not deliver the property to the executor; but, if, upon the return of the order, the title or right of possession of the executor to the property is disputed, the surrogate must dismiss the proceeding, and the executor is remitted to his legal remedies in some other forum.” The court further said: “The objections to this decree are jurisdictional. Consent of the parties is not sufficient to avoid their fatal effects.” Without further quotations from cases we cite in support of the proposition that probate courts are without jurisdiction to hear and determine contested claims of title to property, between am estate avid a stranger, the following authorities: Moss v. Sandefur, 15 Ark. 381; Chamberlain’s Appeal, 70 Conn. 377 (a very careful and well reasoned case) Mallory’s Appeal, 62 Conn. 223; Cones Appeal, 68 Conn. 90; Farnham v. Thompson, 14 Minn. 336; Mossean v. Mossean, 40 Minn. 239; State v. Probate Court, 33 Minn. 94; Comstock v. Matthews, 55 Minn. 111; Johnson v. Jones, 47 Mo. App. 241; Cauley v. Truitt, 63 Mo. App. 357; Re Estate of Stewart, 67 Mo. App. 357; Weener’s Probate Law, sec. 151; Hoen v. Struttman, 71 Mo. App. 404; Hill v. Hardy 34 Miss. 289; Wood v. Chick, 55 Tex. 242; Wise v. O’Malley, 60 Tex. 588; Edwards v. Mounts, 61 Tex. 398; 11 Cyc. Law and Proc., sec. 3, p. 796 and notes; Homer’s Appeal, 35 Conn. 113; Harris v. McKee, 4 Metcalf (La.). 4, Mart. 485; Donaldson v. Dorsey, 4 Mart. 509; Overton v. Overton, 10 La. 466; Gibson v. Cook, 62 Md. 256; Ee Estate of Burton, 63 Cal. 36; Re Hass Estate, 31 Pac. 893; Theller v. Such, 47 Cal. 447; Ex parte Casy, 71 Cal. 269; 102 Cal. 64 Am. St. 435 and notes; Proctor v. Athyns, 1 Mass. 320; Pond v. Pond, 13 Mass. 413; Robinson v. Fair, 128 U. S. 53. It is contended by appellees in their brief that the foregoing citations from the court of the State of California have been overruled in the cases of Burdick’s Estate, 40 Pac. 35 (Cal.), and In re Clary’s Est. 44 Pac. (Cal.) 569. We cannot read and understand the two last cases mentioned as do counsel for appellees. Indeed those two cases support the proposition laid down in the citations from the Supreme Court of that State. The learned counsel for appellees claim that the case of Attorney General v. Brigham, 142 Mass. 271, overrules the cases of Proctor v. Athyns, and Pond v. Pond, supra. We have read these cases, and are of the opinion that there is no conflict in these decisions.

The foregoing cases are clear, comprehensive and decisive of the question that probate courts have no jurisdiction to settle questions of title to property between estates and third parties. The number of cases squarely supporting this proposition is limited only by the number of cases deciding the question. We have carefully gone over the cases cited by appellees in their briefs and find none that support the proposition that a probate court has jurisdiction to adjudicate title to property, real, personal or mixed, between the estate and a stranger to the estate; nor have we found a case elsewhere that so holds. The trouble with appellees argument and citations is that they do not start at the beginning: They start with the assumed fact that Leon Caron was the trustee of Patrick Cullen, holding the leases in trust for him. Why go into the probate court to have that fact decreed? Was not that fact the only reason for going into the probate court? Why did appellees not bring suit in ejectment, if the administrator was in possession of the land? To assume that Caron was the trustee of Cullen is to assume the decree of the probate court regular, legal and binding. If this were true, the property in controversy belongs to the appellees. If this assumption of the legal effect of the judgment of the probate court is erroneous — and we think it is — then how are appellees to ascertain whether or not Caron was a trustee for Cullen? This is the sole issue in this case. Nearly all of appellee’s argument and citation of authorities is to establish the proposition of law that administrators stand in the same position as their decedents as to trust property — a proposition conceded by all who have the least conception of the law. The leases conveyed to Caron an interest in the property described in the leases, without reservation or restriction. There is nothing in the leases or in the deed from Cullen to Caron and Randall that even squints at a trust relation existing between Caron and Cullen. Who knows that there was any such trust? It is pertinent for us to inquire again: How are appellees to ascertain whether or not Caron held the leases in trust for Cullen? There can be but one answer — by a judgment of a court of competent jurisdiction. The contest of title to personal property and possession is a law action — a simple suit in replevin, a trial by jury being guaranteed the parties, and it must be so tried unless trial by jury be waived by both. And yet it is urged that because one of the contending parties is dead, this procedure must stand for naught, and a quasi-equitable proceeding, substituted in a court without general jurisdiction, where only a legal representative appears for the defendant with no interest in the result of the suit, and before a court that is not required to know any law and that does not know any more that the law requires; and this is claimed to be res judicata, Such a contention is an absurdity. The probate courts have no jurisdiction in such cases. Nor can the parties by consent confer it. In re Walker’s Estate, 136, N. Y. 20. Nor can Legislatures confer such jurisdiction upon probate courts. 20 Wall., 128 U. S., 132 U. S., supra. It is argued that the probate courts can, when -a necessary incident to the administration of an estate, adjudicate title to personal property. Was the trial of title to property between' Cullen and the estate a necessary incident? Incident to what? Incident to nothing. It was the whole issue, the only issue and the only thing before the court. The administrator could and should have held the leases as a part of the estate, and they are a part of the estate until a court of competent jurisdiction says otherwise. If the probate court had jurisdiction in that case, it follows that it has jurisdiction to hear and determine the title to any kind of personal property between Cullen, a stranger to the estate, and the estate. If, instead of leases, the administrator had found in his possession, sheep, cattle and money, Cullen could have appeared in the probate court by petition, affidavit in replevin or any other procedure, and had his title to such property adjudicated by the court, and his title to the same established, without giving the estate the right of a trial by jury and without giving the heirs or other persons interested in the estate notice of the proceedings, except notice to the administrator, whose interest in the estate as a rule is what he can get out of it. There is no provision of law in this Territory for giving notice to interested parties of the proceedings of such an action; there is no way by which the interested parties can know of such a decree, and no means or requirement that they shall be notified of such proceeding and decree. Yet the interested parties may be minors or may reside in a foreign country. Still appellees would hide behind the neglect of the heirs and others interested in not taking an appeal from such a decree within ninety days after its rendition. This case is a fair illustration of what might or could be done by human vultures, administrators and probate courts ignorant of the law. The proceedings of this case furnish the reason why the Legislatures of the various States and the courts by an unbroken line of authorities have refused to grant 'to probate courts the jurisdiction contended for by appellees in this case. The decree of the probate court of Santa Fe county, is a nullity, in conflict with the letter of the law, in conflict with the spirit of the law, in conflict with the intention of the Legislature, and in conflict with the opinion of the great men and jurists who have graced the bench through the United States! To give the probate courts the jurisdiction contended for by appellees, would be to give them general jurisdiction; and not only that, but would clothe such courts with far greater powers than are conferred upon the district courts of this Territory. This proposition is in conflict with the organic act and the unbroken line of authorities of both State and Federal courts. By the written and unwritten law the greatest protection has been thrown around the estates of the dead. The law has sought to protect the widow and the orphans, as well as others interested in estates, from such invasions as is manifest in this case. Prohate courts, administrators and executors have been thus curtailed of power, authority and jurisdiction, so that the real parties in interest may be protected against the ravishers of estates, so prevalent where not safeguarded by the strong arm of the law. To sustain the decree of the probate court of Santa Fe county would be to confer upon such courts the power, not only to hear and determine questions of title to personal property in cases brought by strangers to the estate, but title to personal property between the administrator and strangers to the estate brought into court upon the petition of the administrator; or, in other words, it would make no difference how the case got into court-^-the court would have jurisdiction of the parties and the subject-matter, and its decree would be unimpeachable except by appeal taken within ninety days from the date of their rendition, of which decrees interested parties, in the nature of things, could not and would not know until everlastingly too late.

For the reasons given, the action of the trial court in sustaining the demurrer of appellees to the complaint in this case on each and every ground therein stated, was erroneous, but as the decree of the probate court was a nullity its decree was not a cloud upon the title; for this reason the court committed no error in dismissing the bill. Therefore the action of the lower court is affirmed, and it is só ordered.

Mills, C. J., and Parker, A. J., concur. McFie, A. J., having heard this case in the court below, took no part in this decision and Mann, A. J., not having heard the argument, did not participate. Nor did Pope, A. J., having been of counsel in the case,, take any part in this decision.