174 N.W. 93 | N.D. | 1919
Lead Opinion
This is an appeal from an order of the district court of the county of Barnes sustaining defendants’ demurrer to plaintiffs’ complaint.
About the 3d day of August, 1910, one Jessie Lodine Moore died; at the time of her death she was a resident in the county of St. Lawrence, state of New York. She left a last will and testament of which Charles W. Palmer was appointed the sole executor. The will was duly proved in the surrogate court of St. Lawrence county and therein duly admitted to probate. Letters testamentary were duly issued to Charles W. Palmer, who duly qualified as such executor and ever since and now is acting in that capacity. At the time of the death of Jessie Lodine Moore, she was seised of certain real and personal property in the county of Barnes, state of North Dakota. The real property consisted of all of Sec. 25, T. 141, R. 57. By the terms of item 2 in the will, the land in Barnes county, North Dakota, was disposed of as follows: “I give, devise, and bequeath my farm in the state of North Dakota, the crops growing thereon, and any other personal property situate thereon in which I have any interest, to the brothers and sisters of my late father, David Moore, share and share alike, and in any instance where a brother or a sister may die prior to my decease leaving a child or children, such child or children shall receive the same share which the parent would have received had such parent been living.”
Charles W. Palmer received ancillary letters testamentary in Barnes county. In a petition for such letters, plaintiffs are named with others as legatees. It is alleged in the substance of the complaint that plaintiffs are devisees, legatees, heirs at law, or next of kin of Jessie Lodine Moore, deceased, and entitled to share in her estate; that the plaintiffs Harry Moore, Wade Moore, and James D. Moore are children of James Moore, deceased, who was a brother of the testatrix’s father; that James Moore died pribr to the testatrix; that Darius Moore and Clayton Moore are children of John Moore, who- was a brother of testatrix’s father; that John Moore died prior to testatrix; that Jennie
It appears from the allegations of the complaint that Charles W. Palmer as executor pursuant to authority in the will sold the land in Barnes county for $20,000; he reported the sale thereof to the county court of Barnes county, which sale was by it approved. The balance of the property of the estate in Barnes county was converted into money. On about the 13th day of May, 1916, the executor filed in the county court of Bames county his final account and petition for final decree of distribution. The final account showed total assets of $20,555.33 and expenditures of $2,800.92, leaving a balance for distribution under the terms of the will of $17,754.41. On the 21st day of August, 1916, the county court of Barnes county made and entered its final decree of distribution, wherein it distributed and gave to the defendants Richard Moore, Samuel Moore, Clemena Newton, Mary Thompson, and Grant Moore, as legatees in the last will and testament of Charles Moore, deceased, the whole of the residue of the estate, share and share alike. No part of the estate by the final decree of distribution was distributed to or given to the plaintiffs herein or either of them, and they were each deprived of their distributive share thereof.
On the 3d day of November, 1916, the county court of Barnes county entered its order closing said estate as to the ancillary proceedings. It is claimed by plaintiffs that they had no actual notice of the entering and making of said final decree of distribution, and of the order ■closing said estate as to said ancillary proceedings, and no knowledge thereof until about the 20th day of March, 1918.
The foregoing is the substance of the allegations of the complaint. To this complaint the defendants demurred upon three grounds: (1) Because the court has no jurisdiction of the persons of the defendants or the subject-matter of the action; (2) because the court has no jurisdiction of the subject-matter of the action; (3) because the complaint does not state facts sufficient to constitute a cause of action. The court made its order sustaining such demurrer. The reason assigned by the court for sustaining such demurrer was that the complaint did not state facts sufficient to constitute a cause of action. From this order the plaintiffs appeal to this court. The only error assigned in the appeal is the making of the order sustaining the demurrer.
Plaintiffs brought this action within that three-year period. The above section may be divided into two parts for the purpose of construction. The first part relates to the setting aside of a decree of the county court directing or confirming a sale on the ground of fraud. It is self-evident that the decree disposing of the property may be set aside if it is tainted by fraud, no matter by whom such fraud was committed nor whether the fraud was actual or constructive.
This case is not predicated upon fraud, and for this reason the decree may not be set aside on that ground. We will confine our discussion to the other part of said section which provides, “or other ground upon which the action is based.” What, then, are the other grounds ? We can reach but one conclusion with reference as to the meaning of such words, and that is — they mean any other ground which would appeal to the conscience of a court of equity, as where there has been manifest injustice done by entering of said decree or a manifest material mistake therein, etc.
The words, the meaning of which is under consideration, constitute a separate and distinct reason for setting aside such decree for other reasons than that of fraud. It now becomes necessary to determine the meaning of the language used in item 2 of the will, which is quoted above in full. That language means that the property therein described was devised and bequeathed to the brothers and sisters of the testatrix’s late father, David Moore, share and share alike, who were living at the time of the death of the testatrix; that is, the brothers and sisters of the testatrix’s father would take an equal share of that property if they were living at the time testatrix’s death occurred. If, however, any
This construction of the language of item 2 of the will being correct, the plaintiffs herein, when the will became operative, were entitled to receive the share of the estate described in item 2 which would have been received by the parent if the parent had been living at the time of the death of the testatrix. The complaint alleges plainly that Harry Moore, Wade Moore, and James D. Moore are children of James Moore, deceased, who was a brother of the testatrix’s father; that James Moore died prior to the testatrix. A similar allegation is contained in the complaint as to other plaintiffs who are children of another brother and sister of the father of the testatrix. All of these allegations are admitted by the demurrer. The demurrer also admits the allegations of the complaint, that they are entitled to a share in the estate. It also admits that no part of the estate by the final decree of distribution was distributed to or given to the plaintiffs, and that they were deprived of their distributive share thereof. We thus have a case where the plaintiffs, according to the allegations of the complaint, are clearly entitled to a share of the estate, and one where it is admitted by the demurrer they are entitled to a share, and one where it is admitted the estate in which they were entitled to a share was distributed and their share given to others, the defendants herein, who were not entitled under the terms of the will to receive the same. According to the complaint, under the plain terms of the will, the plaintiffs were entitled to their share as defined by the terms of the will. The final decree of distribution totally disregards the provisions of the will. The original petition for probate of the will showed that these plaintiffs were legatees and devisees under the will. The complaint states a perfect cause of action under § 8809 of the Compiled Laws of 1918. It was not necessary that the complaint should allege fraud. It is only necessary to allege fraud where fraud is relied upon; where other grounds “or reasons than fraud are relied upon” it is only necessary to set forth such other grounds and reasons for setting aside the decree.
Dissenting Opinion
(dissenting). I dissent. It is conceded that the final decree of distribution involved in this action was rendered pursuant to legal notice to the plaintiff and other persons interested. The plaintiffs do not deny this. They merely assert that they had no “actual notice of the making and entering of the final decree of distribution and of the order closing said estate.” There is no averment of fraud, mistake of fact, or other equitable ground for avoiding the decree. The sole complaint is that the county court made a mistake in determining a question of law properly before it.
The county court is vested with exclusive original jurisdiction in probate and testamentary matters. N. D. Const. § 111. A decree of distribution is a final determination by that court of the rights of the parties to the proceeding. Sjoli v. Hogenson, 19 N. D. 82, 122 N. W. 1008. It is of equal rank with a judgment entered in any other court of record in the state. Fischer v. Dolwig, 29 N. D. 564, 151 N. W. 431. The district courts are vested with original jurisdiction “of all causes both at law and in equity,” except as otherwise provided in the Constitution. N. D. Const. § 103. Section 8809, supra, merely recognizes the general jurisdiction of the district court, and limits the time in which an equitable action may be maintained in that court to set aside a decree of the county court directing or confirming a sale or otherwise disposing of property. The rule is well settled that equity will not
The mistake complained of was one which could have been reviewed and corrected on appeal. Our laws furnish ample means for the review and correction of errors of law committed by a county court, both by motions in such court and by appeal to the district court. Clearly § 8809, supra, was not intended to allow an action to be maintained in the district court to correct errors of law committed by the county court. As was said by this court in Fischer v. Dolwig, 39 N. D. 161, 166 N. W. 797: “While § 8809 of the Compiled Laws of 1913 authorizes an action in the district court to set aside a final decree of the county court for fraud or other equitable ground, it manifestly does not authorize such action to review errors properly reviewable on appeal from the final decree.” In his concurring opinion in that case Justice Birdzell said: “The remedy open to a suitor to impeach a judgment for
fraud within the time prescribed by § 8809, Comp. Laws 1913, cannot be considered as a mere substitute for an appeal, nor can the statute be given an interpretation which would have the effect of extending the time for appeal.”
In his work on Probate Law and Practice, Ross says: “A decree of final distribution, while ordinarily conclusive upon the parties in interest unless appealed from, may nevertheless be vacated or modified on motion in the lower court, at any time within the six months allowed by statute therefor, upon a proper showing of mistake, surprise, inadvertence, excusable neglect, or the like. But after the expiration of six months the probate court has no power to grant relief. Thereafter, the only remedy of the aggrieved party is by an independent suit in equity. The law is settled that the remedy by motion is merely cumulative, and does not displace the jurisdiction of a court of equity to review a decree of distribution, upon a showing that it was procured by extrinsic fraud or mistake, whereby the court and the losing party were imposed upon or misled, and to enforce an involuntary trust against those who have thereby gained an inequitable advantage. But equity will not grant relief for . . . mere error.” Ross, Prob. Law & Pr. § 544. See also Royce v. Hampton, 16 Nev. 25; Mulcahey v.
Concurrence Opinion
I concur in the result.