Jacquish v. Deming, 167 N.W. 157

Jacquish v. Deming

167 N.W. 157

S.D.

1918

Check Treatment

SMITH, J.

Aрpeal from 'an order sustaining defendants’ demurrer to plaintiffs complaint. Briefly stated, the complaint alleges that thе plaintiff and the defendants are the sole heirs at law oif one Rachael J. Deming, who died lab-out January 12, 1909, the owner of certain real estate in Sanborn county, and of certain money, cattle, horses, and personal property, of the value of about $1,500; that upon the death of Rachael J. Denting the defendant William M. Doming took possession df all of said personal -property and 'Converted the same toi his own use, except that he [applied -a portiоn thereof to- payment of the expenses of ■the last sicknieis's and funera.li 'expenses of Rachael J. Denting; that he has continuously lived upon, farmed, 'and -cropped -said land's, and appropriated the entire proceeds arising therefrom to bis own use; that the reasonable -viable of the us-e of said lands, from January 12, 1909, to the beginning of this suit, is the sum of $2,000; that at the time of her death Rachael J. Deming did not owe any debts, and that no proceedings were -ever had for ■the probate of her said estate; that the 'defendant William- M. D'eming has never accounted for or pa-id over to piainitiiff -аny part of the -aforesaid money or personal -property, and- has never accounted for or -paid1 -over to her -any rents and profits arising® firclm said tends, or for the use thereof; that the defendants Paul-son, Rasely, and Johnson have or /claim some right, -title, or interest in and to /said lands, -but that said right, title, or interest is inferior to the title of this pl/aintiff, who is the owner, -by inheritаnce, of an undivided on-e-fifthi of said lanldfe and personal .property. Plaintiff prays that she -be awarded a decrеe establishing her rights as the owner of an- undivided- one-fifth of said lands; that the right, title, or interest of all defendants in -Said lands be determinеd, -and that tine right, title, -or interest o-f the defend*268ants Plauilson, Rasely, and Johnson he .adjudged inferior to the title ¡olf this plaiiin'tiff; that said William M. Deming be required to account for the personal property above mentioned and for the use of 's'aid lands, amid .that tine lands be Sold and the proceeds thereof brought into court, and that the defendant William M. D'emling be required to aсcount far the personal property 'hereinbefore mentioned and for the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍use of said lands; that the money and property referred to be distributed among the several parties to this suit according to their lights and in proportion to thеir interests itharein. Defendant demurs, 'em the ground that the facts stated ini the compilaint do not constitute a cause of 'аction, tiiialt the court had nia jurisdiction, of the subject of the action, and tire .plaintiff b,as no legal capacity tо use.

[1] Appellant’s contention is that the circuit court is vested with equity powers equivalent to those possessed by the fеderal courts in the matter of the estates of deceased persons, conceding-, however, ithfat equity courts will rеfuse to exercise siuch jurisdiction, uiniless the oase involves' exceptional circumstances warranting tire interferеnce of equity. Respondent appears to rely •Upon 'Section 16 :clf the Probate Code, which lis as follows:

“In all counties 'having a papulation of less than 10,000, the county court ishfaili have exclusive origina(1; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍jurisdiction in the matters of probate, and settlement of estates- of dteceased' -persons.”

Assuming that the allegations olf the complaint arе sufficient to bring this case within the purview of that section-, it is- clearly beyond the legislative power to deprive the circuit court of jurisdiction conferred by the state Constitution. Section 14, art. 5, Constitution. Trotter v. Mutual Life Ass’n, 9 S. D. 596, 70 N. W. 843, 62 Am. St. Rep. 887; Welsh et al. v. Krause, 38 S. D. 264, 161 N. W. 189. It remains to be determined whether the facts alleged litn flue complaint present sucli exceptional circumstances as to warrant the interfеrence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of equity, or of such an essential nature that a probate court is incompetent to give equally prоmpt and adequate relief.

[2] Section 1093, Civil Code, provides that -the property, both real a'nid personal', of onе who, dies without disposing of it by will ¿p-assiesi to; the heir's of the intestate, subject to, the control of the county daunt and to the possession' of any administrator appointed by tihiait court for the purpose of administration. No *269title originates from a 'decree of distribution of the county court. Such 'decree has no 'cither effect than to release the title оf which the heirs become vested, on the death of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍-the ancestor, from the conditions of 'adtaiiniisitration to which it was subjеct, an'dl to furnish the heir with legal! evidence of -such release. Carter v. Frahm, 31 S. D. 379, 141 N. W. 370.

[3, 4] The situation presented by the lallegaltions оf the complaint 'and the demurrer is, in legal effect, the same as though the estate of the 'decedent had- been administered' upon, diebts paid in full, and heirship adjudicated; parties to the action being the sole heirs of the decedеnt. The ¡dieraur.rer admits that one of tile heirs has taken and is in possession of the entire assets of the estate, both real and personal, and has hlaid the use, rents, and profits thereof fclr a long period of time. The plaintiff demands an aсcounting therefor, and am adjudication of the rights ‘and interest of plaintiff -and all the -other heirs. The ■probating' of the estаte would not render the -rights- of the heirs more effective, nor would it afford: the full and sipeedy relief demanded and* which can be administered! in’ fifis action. We are of the view that the case involves circumstances so exceptional that the court should assume and exercise jurisdiction.

[4] Respondents also contend that the complaint is insufficient, in that it does not allege intestacy of decedent. The death of the ancestor being shown, it is presumed, in flue absence of аllegation and ’proof to the contrary, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that he died intestate, and t!h,at title to 'his real estate has passed to his heirs by descent. The same presumption would .prevail as to personal property umdler -our statute. Civil Code, § 1093, supra; Lyon v. Kain, 36 Ill. 362; Miitchell v. Thorne, 134 N. Y. 536, 32 N. E. 10, 30 Am. St. Rep. 699.

Tlhe order of the trial court is reversed.