52 P. 634 | Nev. | 1898
Lead Opinion
The facts sufficiently appear in the opinion.
W. E. F. Deal, R. M. Clarke, and C. A. Jones, for Appellant:
I. The jurisdiction of the district court in matters of probate is special and limited. The court has no power except such as is expressly conferred by the probate act. (Constitution of Nevada, art.
II. "Unless a warrant for the exercise of jurisdiction in a particular case can be found in the statute, given either expressly or by implication, the whole proceeding is void." (Pelham v. Murray,
III. "Since the functions of probate courts are limited in *199
respect to executors and administrators to the control of the devolution of property upon the death of its owner, it is not their province to ajudicate upon collateral questions." The right or title of grantees, heirs, legatees, devisees or distributees to an estate must, if an adjudication become necessary, be tried in courts of general jurisdiction. Probate courts have no power to investigate the validity of an assignment of an interest of an heir or legatee; the decree in distribution should be to the successors of the property, leaving questions of distributive rights to be ajudicated in the ordinary courts. (1 Am. Law of Administration, sec. 151;
IV. The probate court, upon a petition for partial distribution, has no power to construe a written agreement, the interpretation of which is contested by the parties. It cannot annul the agreement for fraud. It cannot set it aside for mistake or want of consideration. It cannot reform it for any defect whatever. It has no power to enforce its decree in any of the respects before mentioned. For similar reasons it has no power to decree the specific performance of a contract, or hear evidence to determine what the parties intended where ambiguity exists. The court, sitting in probate, has no jurisdiction to distribute the estate, contrary to the provisions of the statute, under a contract, the meaning of which is disputed and controverted by the parties.
V. "By distribution is understood the division of an intestate's estate according to law." (Bouvier's Law Dictionary, 438.) "Distribution has been defined to be the division of an intestate's estate according to law." (Rodgers v. Gillet,
VI. The community property is not "subject to distribution," and is not within the terms of the agreement of September 17, 1894. (Gen. Stats. 509; Ballinger on Community Property, 230, 231, 232;
VII. Under Gen. Stats. 509, by its express and unambiguous words, all the community property "belongs" to thepetitioner, and respondents have no interest in it whatever, unless the agreement of September 17, 1894, takes petitioner's interest out of her, and vests such interest in the respondents. The one-half of the community property of which said M. D. Foley and said Minnie D. Foley were possessed at the time of M. D. Foley's death is no part of the estate of M. D. Foley, deceased, but belongs to Minnie D. Foley in her own right, and as tenant in common with said M. D. Foley, by virtue of the marriage relation, and because it was acquired by their joint effort. (Gen. Stats. 509; Ballinger on Community Property, 74, 222, 230, 231, 232.)
Addendum
The respondents have petitioned for rehearing on the ground that in their opinion "the court has overlooked some of the facts of the case and has failed to give others their true value."
They say: "Upon the point of jurisdiction we have no quarrel with the law as stated by the court. It is only in the application of the law to the facts of the case that we believe error has been committed."
As to what was stated by this court on appeal to be the law on the point of jurisdiction, and as to its application of the law to the facts of the case will be found reported in 51 Pac. Rep.
Petitioners for rehearing present in their petition, substantially, the same points and arguments as they presented on the hearing of the appeal. These we carefully considered before, and have as carefully considered them again on this petition, and we are satisfied that the law on the point of jurisdiction, as stated by the court and admitted by counsel to be correct, was properly applied to the facts of the case, unless the plain provisions of the statute relating to the partial distribution of the estates of deceased persons should have been disregarded by the court, and this we do not concede.
After stating the allegations contained in the pleadings of the respective parties, counsel say: "Suppose that, under these allegations, the court had found that there was no community property and had ordered distribution of the separate property, one-half to each of the parties, just as distributed in this case, would there have been any question concerning the jurisdiction to distribute the separate property? If not, then it must be that jurisdiction depends upon the evidence produced and not upon the case made by the petitions which is an inadmissible proposition under all decisions." Counsel overlook "the case made by the petitions" as finally submitted.
It is true that by their petition they denied that any of the property was community property and alleged that it was all separate property. But the parties stipulated that certain *216 described portion of the property was community property and certain described portion was separate property. This stipulation had the same legal effect as if the said denial and allegation had been stricken out of the petition of the respondents by their amendment thereto. The petitions then presented a case for the partial distribution of separate property to the appellant and the respondents as heirs with respect to that property, and a case for the partial distribution of the community property to the appellant, claiming the same as surviving wife of the deceased, and to the respondents, claiming one-half thereof as grantees of the appellant.
Neither petition showed that the respondents were entitled to any portion of the community property, as heirs, and could not do so. Then, can it be said with reason that the court had authority to give a decree distributing it to them under the allegations of the petition of either party or both, without ignoring the provisions of the statute with respect to the distribution of estates of decedents?
We are asked to place a construction upon the said contract entered into between the parties. We held before that the consideration and determination of the meaning of that contract were matters foreign to the proper subject matter before the district court, and that it was not proper for that court to pass upon the questions involved therein in that proceeding, nor proper for this court to do so on this appeal. We are clearly of the same opinion now. Whatever construction this court might give would be meredictum.
*217The rehearing is denied.
