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2. EXECUTORS AND ADMINISTRATORS 18. COURTS Cwm 202(5)-PROBATE COURTS-PRO314(12)-DISTRIBUTION OF ESTATE-APPEAL CEDURE-APPEAL. -JUDGMENT IN APPELLATE COURT.

Section 4933a, Rev. Codes, prescribing a When two appeals are taken by different | form of undertaking on appeal in civil actions heirs from a final decree of distribution in the and declaring the legal effect thereof, applies to probate court, and such appeals are based upon / undertakings on appeal from the probate court. the same record and are heard together in the (Ed. Note.-For other cases, see Courts, Cent. district court, that court should adjudicate the Dig. $ 486; Dec. Dig. Om 202(5).] whole matter of the settlement of the estate as brought before it on such appeals in one judg- 9.

9. APPEAL AND ERROR 394(1)—UNDERTAKment.

ING ON APPEAL-DOUBLE APPEALS.

Where an appeal is taken both from a decree (Ed. Note.-For other cases, see Executors and

and an order denying motion to reopen decree, Administrators, Cent. Dig. 88 1293--1295; Dec.

and both are specifically referred to in the unDig. m314(12).]

dertaking on appeal, in the form into

ich the 3. COURTS 20012-PROBATE JURISDICTION

statute imports every condition required by law, TITLE TO REALTY.

and the amount of the penalty is sufficient for

both appeals, the legal effect is to comprise two Under the laws and Constitution of this

| bonds in one instrument, and it must be so constate, the probate court has no jurisdiction to

strued. adjudicate questions of title to real property.

[Ed. Note.-For other cases, see Appeal and [Ed. Note. For other cases, see Courts, Cent.

Error, Cent. Dig. $ 2097; Dec. Dig. 394(1).] Dig. 479; Dec. Dig. Om 20012.]

10. EXECUTORS AND ADMINISTRATORS 1444. EXECUTORS AND ADMINISTRATORS 315(1) |

CONTRACTS—CONVEYANCE TO WIFE OF AD-DISTRIBUTION OF ESTATE-ASSIGNMENT BY MINISTRATOR, HEIR.

Under section 5543, Rev. Codes, which proUnder section 5634, Rev. Codes, which pro-vides that "No executor or administrator must, vides that "Partition or distribution of the real directly or indirectly, purchase any property of estate may be made as provided in this chapter, the estate he represents, nor must he be interalthough some of the original heirs, legatees, or ested in any sale," an administrator's wife, who devisecs may have conveyed their shares to oth- | receives a deed to property belonging to the eser persons, and such shares must be assigned to tate from an heir before final distribution, must the person holding the same, in the same manner show upon adjudication of her title that such as they otherwise would have been to such heirs, deed was intended to convey the property in legatees, or devisees," it is presumed that as- question to her as her separate property, or the signments or conveyances from heirs to persons transaction will come under the prohibition of claiming the right of distribution from the pro- said section 5543. bate court under this section are valid. If the (Ed. Note.-For other cases, see Executors validity of such a conveyance from the heir is and Administrators, Cent. Dig. &$ 579–584; Dec. disputed by the heir or those claiming under Dig. Om 144.) him, the probate court must distribute the property, covered by such conveyance to the heirs, as Appeal from District Court, Nez Perce if no such conveyance had been made, and the

County; Edgar C. Steele, Judge. heir's grantee or assignee must seek adjudication

In the matter of the estate of Emmett of his title to the property in question before the proper tribunal.

Blackinton, deceased. From a judgment of [Ed. Note.--For other cases, see Executors

the district court, on appeal by Edward B. and Administrators, Cent. Dig. 88 1299-1302; Utter and another, Grace A. Woodward apDec. Dig. Om315(1).]

peals. Affirmed. 5. EXECUTORS AND ADMINISTRATORS O314(3) | Ben F. Tweedy, of Lewiston, for appel

-DISTRIBUTION OF ESTATE-OBJECTIONS BY | lant. James E. Babb. of Lewiston, for reGRANTEE OF HEIR. Where one claiming to be the grantee of an

spondent Utter. Eugene A. Cox, of Lewiston, beir asserts a right to distribution from the pro

for respondents Blackinton. Geo. W. Tannabate court under section 5634, Rev. Codes, and hill, of Lewiston, for respondent Woodward. such claimant is neither heir, devisee, or creditor of the estate, he cannot be heard to question the

SULLIVAN, C. J. The facts shown by the procedure under which distribution of the estate is proposed to be effected.

record in this case, so far as they are essen[Ed. Note. For other cases, see Executors and

tial to a determination of the issues involved, Administrators, Cent. Dig. 88 1279, 1280, 1297; | are as follows: Dec. Dig. Om314(3).)

In December, 1913, Emmett Blackinton died 6. DESCENT AND DISTRIBUTION en 90(1)

childless, unmarried, and intestate. Under PROPERTY SUBJECT-RIGHT OF ACTION. our succession law, his only heir was his

The right to cancel a deed to real property mother, Ann Blackinton, a widow, who had obtained from an ancestor bv fraud. duress.

attained the age of nearly 90 years. He had, undue influence passes to the heirs upon the death of the ancestor, provided the ancestor had

however, at the time of his death, other near not theretofore ratified or acquiesced in the exe relatives, among whom were two brothers, cution of such deed.

William and George, and a nephew, Edward (Ed. Note. For other cases, see Descent and B. Utter, son of a deceased sister. The Distribution, Cent. Dig. 88 351, 352, 368, 375; 1 daughter of William Blackinton, Grace A. Dec. Dig. Om90(1).]

Woodward, the plaintiff in this case, had 7. COURTS 202(5)—PBOBATE COURTS-PRO- married a man by the name of John M. CEDURE-APPEAL.

Woodward, who was appointed the adminSection 4834, Rev. Codes, authorizes an appeal from the whole or "some specific part" of a

istrator of the Emmett Blackinton estate judgment or order of the probate court.

soon after the death of the latter. WithSED. Note. For other cases. see Courts. Cent. | out waiting for an administration of the EmDig. 486; Dec. Dig. Om 202(5).]

| mett Blackinton estate, the sole heir, Ann

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Blackinton, almost immediately proceeded to tate proceedings by the same counsel who a distribution of her interests in the greater represented Utter, and that they did not see part of said estate. She deeded to George Woodward's final report as administrator, Blackinton certain lots situated in Belling- or know that final decree was going to be ham, Wash. On January 14, 1914, she deed- entered, until some time after its entry had ed to John M, Woodward, as trustee for cer- been made. tain grandchildren, some property situated The administrator's final report and petiin Leland, Nez Perce county. On the same tion for distribution was objected to by Utdate she deeded to Grace A. Woodward the ter, and, in the verified objections filed, the Emmett Blackinton ranch near Leland, where question of the validity of the deed to John M. Woodward, Grace Woodward, and Grace A. Woodward was raised. It was herself were then residing, for the considera- alleged that, at the time Ann Blackinton tion of $1 and maintenance and support by executed this deed, she was so far menthe grantee during the remainder of her | tally and physically incapacitated as to life. A little later she caused to be advanced be incapable of making a valid contract, and to George and William Blackinton $300 each that she executed the purported deed by reafrom the cash of the Emmett Blackinton es- son of duress and undue influence on the tate. However, the ranch deeded to Grace part of John M. Woodward. Similar allegaA. Woodward was by far the most valuable tions were made in the affidavit of William part of the Emmett Blackinton estate, its and George Blackinton in support of their value having been given in the appraisers' motion to reopen the decree which was filed report at $10,200; while all the other prop- later on. As no counter affidavits were filed, erty of the estate, including cash on hand, a certain degree of verity must be imputed was valued at less than $3,000.

to these objections of Utter to the final ac After William Blackinton and George count, as well as to the affidavit of William Blackinton learned of the existence of the and George Blackinton in support of their deed from their mother to Grace A. Wood-motion. As the appeals were heard in the ward, they entered into negotiations with the district court on questions of law only, no Woodwards, and, on March 14, 1914, made an oral evidence appears in the record in this arrangement with them which was evidently court, and it does not appear that any eri. intended to supersede the deed from Ann dence was taken in the probate court except Blackinton to Grace A. Woodward. The that of John M. Woodward on settlement of agreement then made between the Wood- the administrator's final account. The obwards and the Blackintons was prepared and | jections of Utter were overruled. executed with the assistance of an attorney, [1] With regard to the decree in the Emand, by its terms, the parties contracted mett Blackinton estate, as finally entered by that the Woodwards should suitably main the probate court, counsel have pointed out tain Ann Blackinton while she lived ; that a number of obvious mistakes and inconWilliam and George Blackinton, in lieu of sistencies. It was recited in this decree that any interest claimed by them in the prop- both Emmett and Ann Blackinton died teserty conveyed to Grace A. Woodward, should tate, whereby, of course, the title to all the receive $6,000, $2,000 of which was to be property proposed to be distributed became paid out of the Emmett Blackinton estate, clouded. It directed the distribution of a conthe remaining $4,000 to be paid to them by | siderably larger amount of cash than was the Woodwards in ten annual installments, shown to be on hand by the administrator's secured by lien on the land conveyed to report. There are other serious defects in Grace A. Woodward. Ann Blackinton, as the decree to which it is not necessary to heir of Emmett Blackinton, entered into a call attention here, but the errors apparent written agreement for the payment of the upon its face so far impaired its value as a $2,000 cash to her sons. It does not, how-judicial act that it should have been reopenever, appear that anything was actually done ed and corrected upon application by the into carry these agreements into effect, and terested parties. This decree distributed to in August, 1914, Ann Blackinton died intes-Grace A. Woodward the property alleged to tate, leaving as heirs her sons William and have been conveyed to her by Ann BlackinGeorge, and a grandson, Edward B. Utter. ton, "subject to the rights of Edward B. Ut

Referring again to the Emmett Blackinton ter, if any, to litigate the same in a court of estate, Woodward, the administrator, made competent jurisdiction." his final report in December, 1914. In this Rev. Codes, $ 4229, provides for parties agreport, he prayed for a decree distributing grieved a means of relief from a decree such the estate in accordance with the deeds of as the one under consideration, since this Ann Blackinton to her heirs and Grace A. provision of the statute has been held to apWoodward, and that the residue of the es-ply to probate practice in this state. Chandtate be equally divided among George and ler v. Probate Court, 26 Idaho, 173, 141 Pac. William Blackinton and Edward B. Utter, 635. William and George Blackinton, alafter deducting advances made to the Black though they had not theretofore appeared in intons. It appears that William and George the matter of this estate in the probate court, Blackinton had been under the mistaken be- 60 days after the entry of the decree moved reopened and a new decree framed which in the Utter appeal, and considerable conshould be correct in form, leaving all the fusion and inconvenience would have been parties free to assert their rights in a court obviated if the district court had entered of competent jurisdiction to determine ques. only one judgment covering the whole mattions of title, and thereby obviate the neces- ter of both appeals from this decree of the sity of an appeal from this defective decree. probate court, as it might properly have done. They allege, among other reasons, that they The appeals were taken about the same time had no actual notice or knowledge of the file upon the same record, were argued to the ing of the administrator's final report and court together, and judgments were filed in petition for distribution, nor of the time and each of them only a day apart. Counsel place of hearing, and had had no opportuni- for respondents raise the point, with referty to appear. In the meantime a new pro-ence to the single appeal of Grace A. Woodbate judge had taken office, and, the mo- ward in this court from both these judgtion being resisted, he declined to set aside ments, that appeals cannot be taken in one a decree entered by his predecessor, and the notice from separate judgments in separate motion was denied.

I proceedings. We are not, however, dispos[2] On February 19, 1915, Utter appealeded to favor technical contentions in a pro from portions of the decree of distribution ceeding of this nature, especially as it does to the district court, and a few days later the not appear that respondents have in any way Blackintons appealed both from the decree been prejudiced by having the appeals from and the order denying the motion to reopen | their two judgments joined in one proceedthe decree. In the district court both appeals ing in this court. On the other hand, counwere heard together, only questions of law sel for appellant moved the district court being passed upon. Those portions of the to dismiss the Blackinton appeal for the decree of the probate court, from which Ut- reason, among others, that William and ter appealed, were set aside, and the probate George Blackintoncourt was instructed as to the form of the "never presented to the probate court any issue decree to be entered, with regard to those of law or fact, and that therefore their appeal matters in which the original decree was

presents to the appellate court no issue of law or

fact to be decided, and the appellate jurisdicfound to be erroneous. It was also ordered tion is confined to such issues of law and fact as that the matter should be set for hearing were presented to the probate court." anew in the probate court and notice given of As a matter of fact, the Blackintons' case such hearing. With reference to the decree had been substantially presented in the Utter to be entered by the probate court, that court appeal. This discloses another reason why was instructed as follows:

the district court should have considered the "That, in entering the final order and decree whole matter as one proceeding, and entered upon such additional hearing to be had, as

one judgment adjudicating as far as possiaforesaid, in the probate court, the said probate court shall not make any finding concerning the ble the claims of all parties Interested in execution, acknowledgment, and delivery of the the single matter of the Emmett Blackinton alleged deed from Ann Blackinton to Grace

estate. Woodward dated January 14, 1914, or of any other deed or deeds or instrument of writing |

[3, 4] The main question in this case arises (validity of which was or may be disputed by from the action of the probate court in upEdward B. Utter or any party in the court be holding, by its decree of distribution, the low) affecting title to the real property describ- validity of the Grace A. Woodward deed. ed in said deed. or incumbering the same or purporting to affect the title thereto or incumber the

the Counsel for appellant contends that, under same, and that said probate court shall not, in section 5634, Rev. Codes, appellant had a leany, such order or decree distributing the prop- gal right to have the real property, describerty of the estate affected by any such convey

ed in her deed from Ann Blackinton, disance or other instrument, including rentals acarning from lands subsequent in date to any tributed to herself. This section provides such deed or instrument, distribute or vest any | that: such real property or rents therefrom, or lien

"Partition or distribution of the real estate thereon, to or in any grantee or assignee, or oth

may be made as provided in this chapter, aler party, in any deed or instrument, but shall

though some of the original heirs, legatees, or distribute the same to and vest the same in the

devisees may have conveyed their shares to othproper successors of said Ann Blackinton de

er persons, and such shares must be assigned to ceased, the same in all respects as if the deeds

the person holding the same, in the same manand instruments had not been executed, save

ner as they otherwise would have been to such only that such order and decree of distribution |

heirs, legatees, or devisees." shall declare that such distribution of the property is subject to the rights, if any, of any gran Counsel calls attention to the mandatory tee in any such deed, or party to, or in interest

word “must," as used in this section, and conin, any such other instrument, as such rights, if any, may be adjudged in any action begun, cludes accordingly that the probate court has or to be begun, in any court of competent juris- no jurisdiction “to set aside, to vacate, andiction.”

nul, and cancel appellant's deed, or the deed Edward B. Utter's judgment was filed in of any heir, which conveys to the grantee the district court on June 17, 1915, and the this right to distribution" under said section. judgment on the Blackinton appeal revers- In other words, he contends that the mere ing the decree of the probate court was filed presentation to the probate court of an inon June 18th. The judgment on the Blackin- strument purporting to be an heir's deed conton appeal was very similar to the judgment stitutes a prima facie showing as against the heir or those claiming, under the heir, and requiring those who obtain conveyances from that the probate court has no alternative but heirs before the settlement of an estate to to distribute the property conveyed by such establish their rights in a court of equity if deed to the grantee, putting the burden up- the conveyance is questioned in the probate on the heir or those claiming under him to court. In this case the judgment of the disshow that they have the better title.

trict court, directing the probate court to disHowever, we do not think the Legislature tribute the property in question to the heirs, intended to give section 5634 the meaning expressly reserved to appellant the right to urged by counsel for appellant. The regular | have her title adjudicated in a proper action line of succession to real property, both under before the proper tribunal, and the entry of the common law and under the statute law, is a decree in the probate court, in accordance from ancestor to heir or devisee, and the ma- with that judgment, will in no way preclude chinery of the probate court is designed to her from exercising that right. effect such devolution of property as ex- Counsel for appellant further contends peditiously as possible. It is true that sec- that the probate court had no jurisdiction to tion 5634 permits a diversion of title to distribute the estate of Emmett Blackinton a given parcel of real property from the to the heirs of Ann Blackinton, who was regular order of succession when a convey- the only heir of Emmett Blackinton. In this ance from the heir or devisee is presented to connection it will be borne in mind that Ann the court. But, when the validity of the in- Blackinton also died intestate, and that there strument so offered is challenged, then the was no administration of her estate. Counissue of title is at once raised, which the sel does not claim that there are any crediprobate court has no power to determine, and tors of her estate, or that the persons to which can only be adjudicated in the dis- whom the Emmett Blackinton estate would be trict court. In that event, therefore, so far as distributed by the decree were not the same the probate court is concerned, it must per- persons who would receive it upon probate of mit the stream of succession to flow in its Ann Blackinton's estate. It may be conceded usual course and must distribute the prop- that the procedure followed might not be erty in question to the heir, leaving the good as against creditors of Ann Blackinton grantee under the disputed deed to try out or contesting claimants of her estate as heirs. the issue of his title in the district court. It

but we think they are sufficient as against

strangers; and, so far as appellant's rights must be assumed that section 5634 only au

under the purported deed from Ann Blackinthorizes the probate court to divert the es

ton are concerned, she must be considered as tate from the heir when a grant, the validity

a stranger, since she does not claim as an of which is undisputed, is submitted to it as

heir, devisee, or creditor of either Emmett a basis for such action. It is not conceivable

Blackinton or Ann Blackinton. This being that the Legislature meant by this statute to

the case, she cannot be heard to question the compel the probate court to change the regii. lar order of succession from ancestor to heir pro

or to heir procedure under which distribution of their in favor of a stranger, upon the submission est

on estates is proposed to be effected. Gwinn v. to it of any instrument whatever purporting

Melvin, 9 Idaho, 202, 72 Pac. 961, 108 Am. to convey the heir's title, no matter how

St. Rep. 119, 2 Ann. Cas. 770. doubtful the authenticity of that instrument

[6] Another contention, upon which counmight be shown to be.

sel for appellant lays much stress, is that the [5] Since the probate court cannot try out

right of Ann Blackinton to attack appellant's the question of title, it must follow that ei

deed for fraud or upon other grounds does ther the heir or the grantee who claims

not descend to the heirs of Ann Blackinton; against the heir must suffer the inconveni

in other words, that it was a personal right ence of having to establish his rights in the

which died with her, and that, upon the district court. The hardship is the same in

death of Ann Blackinton, appellant's deed beeither case, and under our law it is unavoid

came incontestible. We are unable to subable. This being so, it is apparently sound scribe to this doctrine. If it were the law, reason which places the burden of proving any criminal might, by duress or fraud, extitle on the stranger rather than on the heir tort a deed of valuable property from an unto whom title would otherwise regularly de- consenting grantor, and, by making way with scend. Heirs of estates are often young or him immediately thereafter, leave the heirs inexperienced in the transaction of business, of the grantor wholly remediless. The right and sometimes, as possibly in this instance, to cancel a deed obtained from an ancestor they are lacking in capacity to make a valid by fraud, duress, or unŭue influence passes contract. Pressing necessities may force to the heirs, provided the ancestor had not them to raise money on their expectations, committed acts amounting to ratification beand, as the value of their interests is some- fore his death. 9 Ballard's Law of Real what uncertain until the estate is finally set. Prop. $ 143; Curtis v. Burns, 27 Ind. App. 74, tled, it may easily happen that they are in- 60 N. E. 963; Groesbeck v. Groesbeck, 49 Or. duced to part with their inheritance to de- 113, 88 Pac. 870; Marsh v. Marsh, 78 Vt. 399, signing persons for inadequate considerations. 63 Atl. 159; Waddell, Adm'r, V. Lanier, 62 [7] Counsel for Grace A. Woodward moved | “Whereas, the – - desires to give an under. in the district court to dismiss the appeals taking for

(state what): Now, therefore, of the Blackintons and Utter from the pro

we, the undersigned sureties, do hereby obligate ourselves jointly and severally to

(name bate court upon a number of grounds. Par- who) under said statutory obligations in the sum ticular objection was taken to the Utter ap- of $ peal on the ground that it purported to ap-,

"The sureties so signing such undertaking are peal from only parts of the decree of final statute requiring the undertaking."

bound to the full statutory obligations of the distribution; it is contended that a final de

The sufficiency of an undertaking based cree must be held to be indivisible, and that

on this section has already been passed upon it cannot by appeal to the district court be

in Finney v. Moore, 9 Idaho, 284, 74 Pac. "changed into a piecemeal final settlement

866, but the question here is whether section and distribution." Counsel cites 2 Cyc. 532,

4933a applies to appeals from the probate to the effect that a litigant cannot on appeal

court, or whether the provisions of section "divide a case into parts and carry it up by

| 4835, prescribing the language to be used in fragments.” However, section 4834, Rev.

such undertaking on appeals from the proCodes, prescribing the manner of taking an

bate court, are exclusive. We think, howappeal from the probate court to the district

ever, that this matter is controlled by seccourt in probate matters, contains the fol

tion 5665 which provides that: lowing language:

“The provisions of part 2 of this Code, relative "An appeal from the probate court in pro- | to new trials and appeals-except in so far as bate matters is taken, by filing with the clerk they are inconsistent with the provisions of this of the probate court, in which the judgment or title-apply to the proceedings mentioned in this order appealed from is made or entered, a notice title." stating the appeal from the same, or some specif

Now “this title” (title X) embraces probate ic part thereof. * "

proceedings, and section 4933a, upon which We think this language of the statute these undertakings are based, is found in clearly authorizes the taking of an appeal part 2 of the Code of Civil Procedure, which from a part or parts only of a decree of section 5665 makes applicable to title X, refinal distribution in the probate court. Such lating to probate proceedings. decrees involve the settlement of the ac- [9] The undertaking on the appeals of counts of the administrator or executor, in William Blackinton from the probate court which a number of unrelated groups of items was also objected to as being insufficient, in may be involved. Furthermore, there may that, although it purported to cover both the be many distributees under the decree, whose appeal from the final decree and the appeal rights may be variously affected, but there from the order denying motion to reopen the would seem to be no practical reason why decree, it failed to specify which appeal the the appeal of any one of these from the par- undertaking was intended to secure. Of ticular part of the decree affecting him course, if the penalty of the bond were not should unsettle all the other provisions of the sufficient to cover both appeals, the bond decree against which no objection is raised. would be void for uncertainty; but, where These considerations very probably had an appeal is taken from two orders, which weight with the Legislature in authorizing are specifically referred to, in the form into an appeal from "some specific part” of the which the statute imports every condition decree, and the language of the statute ap- required by law, and the amount of penalty pears to be too plain to call for construction. | is sufficient for both appeals, the legal effect

[8] Another ground for Grace A. Wood- | is to comprise two bonds in one instrument ward's motion to dismiss the appeals of re- and it must be so construed. In this inspondents in the district court was the constance the penalty of the bond was $200, the tention that the undertakings on appeal of statutory amount for both appeals. both Utter and the Blackintons were insuffi [10] Counsel for both appellant and recient, in that these undertakings do not con- spondents raise a number of other questions tain the language prescribed by section 4835, on this appeal which, in the view we take "to the effect that the appellant will pay of the case, need not be considered in this all damages and costs which may be award- opinion. There is, however, one question ed against him on the appeal or on a dis- which perhaps should be referred to at this missal thereof, not exceeding $100." This time, as it must arise in any litigation section is embraced in the chapter of the brought to determine the validity of the Code of Civil Procedure relating to “Appeals | Grace A. Woodward deed. This purported from Probate Court to District Court in Pro- to be a warranty deed, drawn in the usual bate Matters," and counsel for appellant in form, to consummate a sale of real property this court contends that undertakings on ap- from Ann Blackinton to Grace A. Woodpeal to the district court in probate matters ward. The consideration named was $1, and must conform to its provisions. On the oth- this clause was inserted before the usual er hand, counsel for respondents contend covenants: that these undertakings were based on the "The following covenants are made with the provisions of section 4933a, which prescribes | express condition that the said grantor shall be the following form, and declares the legal tid

cared for and maintained as becoming her sta

declares the legal | tion and age during the remainder of the life of effect of the execution;

the said grantor by the said grantee." 158 P.-32

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