НЕІВ. Under section 5634, Rev. Codes, which provides that "Partition or distribution of the real estate may be made as provided in this chapter, although some of the original heirs, legatees, or devisees may have conveyed their shares to other persons, and such shares must be assigned to the person holding the same, in the same manner as they otherwise would have been to such heirs, legatees, or devisees," it is presumed that assignments or conveyances from heirs to persons claiming the right of distribution from the probate court under this section are valid. If the validity of such a conveyance from the heir is disputed by the heir or those claiming under him, the probate court must distribute the property, covered by such conveyance to the heirs, as if no such conveyance had been made, and the heir's grantee or assignee must seek adjudication of his title to the property in question before the proper tribunal. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1299-1302; Dec. Dig. 315(1).] APPEAL AND ERROR 394(1)—UNDERTAKING ON APPEAL-DOUBLE APPEALS. and an order denying motion to reopen decree, Where an appeal is taken both from a decree and both are specifically referred to in the undertaking on appeal, in the form into which the statute imports every condition required by law, and the amount of the penalty is sufficient for both appeals, the legal effect is to comprise two bonds in one instrument, and it must be so con strued. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2097; Dec. Dig. 394(1).] 10. EXECUTORS AND ADMINISTRATORS 144CONTRACTS-CONVEYANCE TO WIFE OF AD MINISTRATOR. Under section 5543, Rev. Codes, which provides that "No executor or administrator must, directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale," an administrator's wife, who receives a deed to property belonging to the estate from an heir before final distribution, must show upon adjudication of her title that such deed was intended to convey the property in question to her as her separate property, or the transaction will come under the prohibition of said section 5543. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 579-584; Dec. Dig. 144.] Appeal from District Court, Nez Perce County; Edgar C. Steele, Judge. In the matter of the estate of Emmett Blackinton, deceased. From a judgment of the district court, on appeal by Edward B. Utter and another, Grace A. Woodward appeals. Affirmed. 5. EXECUTORS AND ADMINISTRATORS 314(3) Ben F. Tweedy, of Lewiston, for appel-DISTRIBUTION OF ESTATE-OBJECTIONS BY GRANTEE OF HEIR. Where one claiming to be the grantee of an heir asserts a right to distribution from the probate court under section 5634, Rev. Codes, and such claimant is neither heir, devisee, or creditor of the estate, he cannot be heard to question the procedure under which distribution of the estate is proposed to be effected. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1279, 1280, 1297; Dec. Dig. 314(3).] 6. DESCENT AND DISTRIBUTION 90(1) PROPERTY SUBJECT-RIGHT OF ACTION. The right to cancel a deed to real property obtained from an ancestor by fraud, duress, or undue influence passes to the heirs upon the death of the ancestor, provided the ancestor had not theretofore ratified or acquiesced in the execution of such deed. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 351, 352, 368, 375; Dec. Dig. 90(1).] lant. James E. Babb, of Lewiston, for respondent Utter. Eugene A. Cox, of Lewiston, for respondents Blackinton. Geo. W. Tannahill, of Lewiston, for respondent Woodward. SULLIVAN, C. J. The facts shown by the record in this case, so far as they are essential to a determination of the issues involved, are as follows: In December, 1913, Emmett Blackinton died childless, unmarried, and intestate. Under our succession law, his only heir was his mother, Ann Blackinton, a widow, who had attained the age of nearly 90 years. He had, however, at the time of his death, other near relatives, among whom were two brothers, William and George, and a nephew, Edward B. Utter, son of a deceased sister. The daughter of William Blackinton, Grace A. Woodward, the plaintiff in this case, had 7. COURTS 202(5)-PROBATE COURTS-PRO- married a man by the name of John M. CEDURE-APPEAL. Woodward, who was appointed the adminSection 4834, Rev. Codes, authorizes an ap-istrator of the Emmett Blackinton estate peal from the whole or "some specific part" of a judgment or order of the probate court. [Ed. Note.-For other cases, see Courts, Cent. Dig. 8 486; Dec. Dig. 202(5).] soon after the death of the latter. Without waiting for an administration of the Emmett 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 in Leland, Nez Perce county. On the same date she deeded to Grace A. Woodward the Emmett Blackinton ranch near Leland, where John M. Woodward, Grace Woodward, and herself were then residing, for the consideration of $1 and maintenance and support by the grantee during the remainder of her life. A little later she caused to be advanced to George and William Blackinton $300 each from the cash of the Emmett Blackinton estate. However, the ranch deeded to Grace A. Woodward was by far the most valuable part of the Emmett Blackinton estate, its value having been given in the appraisers' report at $10,200; while all the other property of the estate, including cash on hand, was valued at less than $3,000. The administrator's final report and petition for distribution was objected to by Utter, and, in the verified objections filed, the question of the validity of the deed to Grace A. Woodward was raised. It was alleged that, at the time Ann Blackinton executed this deed, she was so far mentally and physically incapacitated as to be incapable of making a valid contract, and that she executed the purported deed by reason of duress and undue influence on the part of John M. Woodward. Similar allegations were made in the affidavit of William and George Blackinton in support of their motion to reopen the decree which was filed later on. As no counter affidavits were filed, a certain degree of verity must be imputed to these objections of Utter to the final account, as well as to the affidavit of William and George Blackinton in support of their motion. As the appeals were heard in the district court on questions of law only, no oral evidence appears in the record in this court, and it does not appear that any evidence was taken in the probate court except that of John M. Woodward on settlement of the administrator's final account. The objections of Utter were overruled. After William Blackinton and George Blackinton learned of the existence of the deed from their mother to Grace A. Woodward, they entered into negotiations with the Woodwards, and, on March 14, 1914, made an arrangement with them which was evidently intended to supersede the deed from Ann Blackinton to Grace A. Woodward. The agreement then made between the Woodwards and the Blackintons was prepared and executed with the assistance of an attorney, and, by its terms, the parties contracted that the Woodwards should suitably maintain Ann Blackinton while she lived; that William and George Blackinton, in lieu of any interest claimed by them in the property conveyed to Grace A. Woodward, should receive $6,000, $2,000 of which was to be paid out of the Emmett Blackinton estate, the remaining $4,000 to be paid to them by the Woodwards in ten annual installments, secured by lien on the land conveyed to Grace A. Woodward. Ann Blackinton, as heir of Emmett Blackinton, entered into a written agreement for the payment of the $2,000 cash to her sons. It does not, how-judicial act that it should have been reopenever, appear that anything was actually done to carry these agreements into effect, and in August, 1914, Ann Blackinton died intestate, leaving as heirs her sons William and George, and a grandson, Edward B. Utter. Referring again to the Emmett Blackinton estate, Woodward, the administrator, made his final report in December, 1914. In this report, he prayed for a decree distributing | the estate in accordance with the deeds of Ann Blackinton to her heirs and Grace A. Woodward, and that the residue of the estate be equally divided among George and William Blackinton and Edward B. Utter, after deducting advances made to the Blackintons. It appears that William and George Blackinton had been under the mistaken be [1] With regard to the decree in the Emmett Blackinton estate, as finally entered by the probate court, counsel have pointed out a number of obvious mistakes and inconsistencies. It was recited in this decree that both Emmett and Ann Blackinton died testate, whereby, of course, the title to all the property proposed to be distributed became clouded. It directed the distribution of a considerably larger amount of cash than was shown to be on hand by the administrator's report. There are other serious defects in the decree to which it is not necessary to call attention here, but the errors apparent upon its face so far impaired its value as a ed and corrected upon application by the interested parties. This decree distributed to Grace A. Woodward the property alleged to have been conveyed to her by Ann Blackinton, "subject to the rights of Edward B. Utter, if any, to litigate the same in a court of competent jurisdiction." Rev. Codes, § 4229, provides for parties aggrieved a means of relief from a decree such as the one under consideration, since this provision of the statute has been held to apply to probate practice in this state. Chandler v. Probate Court, 26 Idaho, 173, 141 Pac. 635. William and George Blackinton, although they had not theretofore appeared in the matter of this estate in the probate court, 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 fil- 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. proceedings. We are not, however, disposed to favor technical contentions in a proceeding of this nature, especially as it does not appear that respondents have in any way been prejudiced by having the appeals from their two judgments joined in one proceeding in this court. On the other hand, counsel for appellant moved the district court to dismiss the Blackinton appeal for the reason, among others, that William and George Blackinton"never presented to the probate court any issue of law or fact, and that therefore their appeal presents to the appellate court no issue of law or fact to be decided, and the appellate jurisdiction is confined to such issues of law and fact as were presented to the probate court." [2] On February 19, 1915, Utter appealed from portions of the decree of distribution to the district court, and a few days later the Blackintons appealed both from the decree and the order denying the motion to reopen the decree. In the district court both appeals were heard together, only questions of law being passed upon. Those portions of the decree of the probate court, from which Utter appealed, were set aside, and the probate court was instructed as to the form of the decree to be entered, with regard to those matters in which the original decree was found to be erroneous. It was also ordered that the matter should be set for hearing anew in the probate court and notice given of such hearing. With reference to the decree to be entered by the probate court, that court was instructed as follows: As a matter of fact, the Blackintons' case had been substantially presented in the Utter appeal. This discloses another reason why the district court should have considered the whole matter as one proceeding, and entered one judgment adjudicating as far as possible the claims of all parties interested in the single matter of the Emmett Blackinton estate. "That, in entering the final order and decree upon such additional hearing to be had, as aforesaid, in the probate court, the said probate court shall not make any finding concerning the execution, acknowledgment, and delivery of the alleged deed from Ann Blackinton to Grace 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 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 conveyed in her deed from Ann Blackinton, disance or other instrument, including rentals accruing from lands subsequent in date to any such deed or instrument, distribute or vest any such real property or rents therefrom, or lien thereon, to or in any grantee or assignee, or other party, in any deed or instrument, but shall distribute the same to and vest the same in the proper successors of said Ann Blackinton deceased, the same in all respects as if the deeds and instruments had not been executed, save only that such order and decree of distribution shall declare that such distribution of the property is subject to the rights, if any, of any grantee in any such deed, or party to, or in interest in, any such other instrument, as such rights, if any, may be adjudged in any action begun, or to be begun, in any court of competent jurisdiction." tributed to herself. This section provides that: "Partition or distribution of the real estate though some of the original heirs, legatees, or may be made as provided in this chapter, aldevisees may have conveyed their shares to oththe person holding the same, in the same maner persons, and such shares must be assigned to heirs, legatees, or devisees." ner as they otherwise would have been to such Counsel calls attention to the mandatory word "must," as used in this section, and concludes accordingly that the probate court has no jurisdiction "to set aside, to vacate, annul, 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 that the probate court has no alternative but to distribute the property conveyed by such deed to the grantee, putting the burden upon the heir or those claiming under him to show that they have the better title. However, we do not think the Legislature intended to give section 5634 the meaning urged by counsel for appellant. The regular line of succession to real property, both under the common law and under the statute law, is from ancestor to heir or devisee, and the machinery of the probate court is designed to effect such devolution of property as expeditiously as possible. It is true that section 5634 permits a diversion of title to a given parcel of real property from the regular order of succession when a convey ance from the heir or devisee is presented to the court. But, when the validity of the instrument so offered is challenged, then the issue of title is at once raised, which the probate court has no power to determine, and which can only be adjudicated in the district court. In that event, therefore, so far as the probate court is concerned, it must permit the stream of succession to flow in its usual course and must distribute the property in question to the heir, leaving the grantee under the disputed deed to try out the issue of his title in the district court. It must be assumed that section 5634 only authorizes the probate court to divert the estate from the heir when a grant, the validity of which is undisputed, is submitted to it as a basis for such action. It is not conceivable that the Legislature meant by this statute to compel the probate court to change the regular order of succession from ancestor to heir in favor of a stranger, upon the submission to it of any instrument whatever purporting to convey the heir's title, no matter how doubtful the authenticity of that instrument might be shown to be. requiring those who obtain conveyances from Counsel for appellant further contends the case, she cannot be heard to question the [6] Another contention, upon which counsel 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 contract. Pressing necessities may force them to raise money on their expectations, and, as the value of their interests is somewhat uncertain until the estate is finally settled, it may easily happen that they are induced to part with their inheritance to designing persons for inadequate considerations. by fraud, duress, or undue influence passes [7] Counsel for Grace A. Woodward moved in the district court to dismiss the appeals of the Blackintons and Utter from the probate court upon a number of grounds. Particular objection was taken to the Utter appeal on the ground that it purported to appeal from only parts of the decree of final distribution; it is contended that a final decree must be held to be indivisible, and that it cannot by appeal to the district court be "changed into a piecemeal final settlement and distribution." Counsel cites 2 Cyc. 532, to the effect that a litigant cannot on appeal “divide a case into parts and carry it up by fragments." However, section 4834, Rev. Codes, prescribing the manner of taking an appeal from the probate court to the district court in probate matters, contains the following language: "An appeal from the probate court in probate matters is taken, by filing with the clerk of the probate court, in which the judgment or order appealed from is made or entered, a notice stating the appeal from the same, or some specific part thereof. We think this language of the statute clearly authorizes the taking of an appeal from a part or parts only of a decree of final distribution in the probate court. Such decrees involve the settlement of the accounts of the administrator or executor, in which a number of unrelated groups of items may be involved. Furthermore, there may be many distributees under the decree, whose rights may be variously affected, but there would seem to be no practical reason why the appeal of any one of these from the particular part of the decree affecting him should unsettle all the other provisions of the decree against which no objection is raised. These considerations very probably had weight with the Legislature in authorizing an appeal from "some specific part" of the decree, and the language of the statute appears to be too plain to call for construction. [8] Another ground for Grace A. Woodward's motion to dismiss the appeals of respondents in the district court was the contention that the undertakings on appeal of both Utter and the Blackintons were insufficient, in that these undertakings do not contain the language prescribed by section 4835, "to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal or on a dismissal thereof, not exceeding $100." This section is embraced in the chapter of the Code of Civil Procedure relating to "Appeals from Probate Court to District Court in Probate Matters," and counsel for appellant in this court contends that undertakings on appeal to the district court in probate matters must conform to its provisions. On the other hand, counsel for respondents contend that these undertakings were based on the provisions of section 4933a, which prescribes the following form, and declares the legal effect of the execution: 158 P.-32 "Whereas, the taking for desires to give an under(state what): Now, therefore, ourselves jointly and severally to we, the undersigned sureties, do hereby obligate (name who) under said statutory obligations in the sum of $ bound to the full statutory obligations of the "The sureties so signing such undertaking are statute requiring the undertaking." The sufficiency of an undertaking based on this section has already been passed upon in Finney v. Moore, 9 Idaho, 284, 74 Pac. 4933a applies to appeals from the probate 866, but the question here is whether section court, or whether the provisions of section 4835, prescribing the language to be used in such undertaking on appeals from the probate court, are exclusive. We think, however, that this matter is controlled by section 5665 which provides that: "The provisions of part 2 of this Code, relative to new trials and appeals-except in so far as they are inconsistent with the provisions of this title-apply to the proceedings mentioned in this title." Now "this title" (title X) embraces probate proceedings, and section 4933a, upon which these undertakings are based, is found in part 2 of the Code of Civil Procedure, which section 5665 makes applicable to title X, relating to probate proceedings. [9] The undertaking on the appeals of William Blackinton from the probate court was also objected to as being insufficient, in that, although it purported to cover both the appeal from the final decree and the appeal from the order denying motion to reopen the decree, it failed to specify which appeal the undertaking was intended to secure. Of course, if the penalty of the bond were not sufficient to cover both appeals, the bond would be void for uncertainty; but, where an appeal is taken from two orders, which are specifically referred to, in the form into which the statute imports every condition required by law, and the amount of penalty is sufficient for both appeals, the legal effect is to comprise two bonds in one instrument and it must be so construed. In this instance the penalty of the bond was $200, the statutory amount for both appeals. [10] Counsel for both appellant and respondents raise a number of other questions on this appeal which, in the view we take of the case, need not be considered in this opinion. There is, however, one question which perhaps should be referred to at this time, as it must arise in any litigation brought to determine the validity of the Grace A. Woodward deed. This purported to be a warranty deed, drawn in the usual form, to consummate a sale of real property from Ann Blackinton to Grace A. Woodward. The consideration named was $1, and this clause was inserted before the usual covenants: "The following covenants are made with the express condition that the said grantor shall be tion and age during the remainder of the life of cared for and maintained as becoming her stathe said grantor by the said grantee." |