133 N.W. 918 | N.D. | 1911
(after stating the facts as above). The appellants maintain that on an appeal upon questions of law alone the district court is a court of appellate jurisdiction merely, and that, although the said court has the power to reverse or affirm the judgments of the county court, it has no power to change or modify them. They also maintain that because the respondents at the time of the hearing of the petition to probate the will failed to offer proof to overcome the statutory presumption raised by § 5119, Bev. Codes 1905, that the omitted children were unintentionally omitted, the county court should have refused the probate of the will. They also assume that the unexplained ■omission of children by the testator from his will renders such will
We are of the opinion that the probating of a will is not final as to the validity and construction of the instrument, and that such matters may be discussed and adjudicated within a year from the probating of the will (§ 8014, Rev. Codes 1905), or, in fact, at any time before the final distribution, as was done in the case of Schultz v. Schultz, 19 N. D. 688, 125 N. W. 555. A will is a will, even though it merely provides for the appointment of an executor. Bunce v. Bunce, 27 Abb.
.The question has been thoroughly discussed in Washington, where the county courts, like ours, have the power not merely to probate, but to construe and to pass upon the validity of, wills. “This question” the court said in Re Barker, 5 Wash. 390, 31 Pac. 976, “has received much discussion in the courts, and under the various statutes of the different states the courts have held differently as to what was such naming of or providing for children as would prevent their avoiding the will. This court has lately considered this question, and has come to the conclusion that under our statute (Gen. Stat. § 1465) there must be some substantial provision for the children of which they can legally avail themselves, or else there must be an actual naming of such children in the will, or the same will be ineffectual as against such children. See Bower v. Bower, 5 Wash. 225, 31 Pac. 598. We are satisfied with the conclusion to which we arrived in that case, and it is conclusive upon the question under consideration. It follows that the will is ineffectual as against the petitioner. Such being the fact, what was her remedy? In our opinion it was simply to move the court to proceed with the administration of the estate of her mother, and, as a part of such administration, to decree and set over to her the proportion to which she would have been entitled if her mother had died intestate. Under the rule established in the courts of many of the states, it would not be necessary for her to go into the probate court at all, as she could, by a direct proceeding for partition, assert her rights as tenant in common with others who were entitled to any interest in the estate of her said mother. But in this state it has been held that as a general rule an heir cannot assert her rights to the property of her ancestor excepting in pursuance of a proper decree of distribution of the probate court in which such estate is entitled to be- administered. Hence it follows that here the proper relief to be sought by the petitioner is to so move the proper probate jurisdiction, that a speedy ter
' If there were, at any time, any doubt upon the subject, it would seem to have been absolutely removed by § 5120, Rev. Codes 1905, which reads as follows: “When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child or the issue of a child omitted in a will as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees or legatees in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest or other provision in the will would thereby be defeated; in such case, such specific devise, legacy, or provision may be exempted from such apportionment, and a different apportionment consistent with the intention of the testator may be adopted.” As is well said by counsel for respondent, this section assumes that there is a will, and that this will is valid. If there were no
The appellants cite Newman v. Waterman, 63 Wis. 612, 53 Am. Rep. 310, 23 N. W. 696, as supporting their contention; but in that case the court expressly refused to consider the question now before us; and in the subsequent cases of Moon v. Evans, 69 Wis. 667, 35 N. W. 20, and Sandon v. Sandon, 123 Wis. 603, 101 N. W. 1089, it allowed pre.termitted. children to petition the probate court for their shares of the decedent’s estate, after the respective wills had been admitted to probate. Even the dictum of the case of Newman v. Waterman does not go further than to hold that the attack upon the title of the devisees to the property should he made in the probate, and not in the circuit, court. See note to Brown v. Brown, 115 Am. St. Rep. 568, 580.
We are of the opinion that the order of the district court was substantially correct, and that it should be affirmed. It did not as a matter of fact modify or change in any manner the order of the county court from, which the first appeal was taken. It merely construed that order and gave to it the meaning which, irrespective of su'ch modification or construction, the law would have implied and would have given to it.
The judgment of the District Court is affirmed.