Chadwick v. Chadwick

6 Mont. 566

• Court: Montana Supreme Court
• Decided: January 15, 1887
• Status: Published

Opinion

Galbraith, J.

In this record there are two appeals, each from an order affirming the action and judgment of the probate court of Lewis and Clarke county, each of which was rendered upon an agreed statement of -facts. These appeals, in our view of the case, may be determined together.

The first of the agreed statements was as follows, viz.: “The petition of Norma D. Chadwick, widow of the said Walter F. Chadwick, deceased, having been filed in said court in the above entitled proceedings, on the 26th day of January, 1886, for a decree setting apart a homestead, upon which a decree was made by the said court on the 9th day of April, 1886, granting the prayer of said petition; and it being claimed by and on the part of said Norma D. Chadwick that she is entitled to the homestead so set apart to her in addition to the devise to her in the will of said Walter F. Chadwick contained; and it being claimed by and on the part of the other devisees mentioned in said will that Norma D. Chadwick, having elected to take under the will, that said homestead, if allowed, should be charged to and made a part of the devise to her in said will con-tamed, on the final distribution of said estate: Now, therefore, it is hereby stipulated and agreed, by and on the part of the several parties interested herein, by their respective attorneys, . . . that on all the records, papers and proceedings heretofore had in reference to the estate of Walter F. Chadwick, deceased, and upon the foregoing facts and statements, said controversy be, and the same is hereby, submitted to the said probate court for its determination upon an argument, at a date to be fixed by the court.”

The questions submitted are as follows, viz.: “ Whether the said Norma D. Chadwick is entitled to said homestead, and, if so, shall it be in addition to the devise to her in said will contained; or whether said devise to her shall be charged with the said homestead, or the appraised value thereof; all parties hereto waiving any irregularity or failure to appeal from any order made herein relative to the setting apart of said homestead, and all parties reserving the right to appeal from the decision of the said court upon the questions hereby submitted.”

The second stipulation and statement of facts was as follows, viz.: “ On the 6th day of April, 1882, the said Walter F. Chadwick made and executed his last will and testament, a copy of which is hereto attached, marked ‘ Exhibit A,’ and hereof made a part; that, after the execution of said will, the said W. F. Chadwick made and executed a certain deed, a copy of which is hereto attached, marked ‘ Exhibit B,’ and hereof made a part; and, at or about the same time, the said Walter F. Chadwick and Charles A. Broadwater executed an agreement, a copy of which is hereto attached, marked ‘ Exhibit 0,’ and hereof made a part; that said deed and agreement were deposited with and left in the Montana National Bank of Helena, M. T.; that on the 20th day of January, 1885, a statement or agreement, referring to said deed and agreement marked ‘ B ’ and ‘ 0,’ was made and signed by said W. F. Chadwick and C. A. Broadwater, a copy of which is hereto attached, marked ‘ Exhibit D/ and hereof made a part; that on the 18th day of August, 1865, the said Walter F. Chadwick entered into a new and modified agreement concerning said deed with Charles A. Broadwater, a true copy of which is hereto attached, marked ‘ Exhibit E,’ and hereof made a part, which said modified agreement was also deposited in the Montana National Bank of Helena, M. T.; that thereafter, and on the 28th day of September, the said Walter F. Chadwick died; that on the 19th day of October, 1885, the said last will and testament of said Chadwick was duly admitted to probate in the probate court of said county of Lewis and Clarke, in said territory, and forms a part of the record in the matter of said estate, to which reference is hereby made; that on the 31st day of December, 1885, the said Broadwater paid to the executors of the will of said Walter F. Chadwick the sum of $22,500, as provided by said agreement (Exhibit E), for said mining property named and described in said deed, under and pursuant to said agreement (Exhibit E), for the use and benefit of the estate of said Chadwick; that on the said 31st day of December, 1885, and after said payment, the said Montana National Bank delivered to the said Charles A. Broadwater the said deed, in pursuance of said agreement (Exhibit E). It is now claimed on the part of the said Norma D. Chadwick that, under and pursuant to the terms of said will of Walter F. Chadwick, she will be entitled, upon the final distribution of said estate, to the whole of said sum of $22,500 so paid as above stated, as a part of the personal estate of the said Walter F. Chadwick bequeathed to her. It is claimed upon the part of the other devisees named and designated in said will that said sum of $22,500, so paid in after the death of said Walter F. Chadwick, and after the probate of said will, should be considered and treated in the settlement and distribution of the estate of said Chadwick as a part of the real estate and mining property devised by said will, and that it -will be distributed as such, upon such final settlement, one-lialf thereof going to Norma D. Chadwick, and the remaining one-half thereof to be distributed to the other devisees, share and share alike. Now, therefore, it is hereby stipulated and agreed, by and upon the part of the several parties interested herein, by their respective attorneys, that on all the records, papers and files in the above entitled proceeding, or hereinbefore mentioned or referred to, and upon the foregoing statement of facts, said questions and controversybe, and the same is hereby, submitted to the said probate court for its determination, upon an argument to be made before said court, at a time to be designated by said court, all parties hereto waiving any irregularity herein, either upon this hearing, or upon any and all appeals which may be taken from the decision of said court upon the questions hereby submitted, all parties reserving the right to appeal from said decision. This submission and stipulation is made for the express purpose of obtaining a final determination of the interests and rights of the respective parties in and to the said sum of money, under and by virtue of the terms and provisions of said last will and testament of Walter F. Chadwick, deceased, in advance of the final distribution of said estate, and for the direction of the court and executors in the matter of said estate relative to such distribution. The deed referred to as Exhibit E, as of February 14, 1885, is the same deed bearing date January 20, 1885, of which Exhibit B is a copy. Each party reserves the right to introduce competent oral testimony, or additional documentary evidence, upon any hearing had by virtue hereof. Dated June 18, 1886.”

Our first inquiry will be addressed to a consideration of the question of whether or not we have the authority to consider the questions presented. The consideration of the jurisdiction of a court to hear and determine matters in litigation is one which presents itself in limine, and it is clear that, if the probate court could not entertain the subject-matter of these petitions, its appellate courts have no such jurisdiction. People v. Durell, 1 Idaho, 44. Had, then, the probate court jurisdiction to hear and determine the questions presented? This question was not brought to the attention of the court below, nor to this court, until request was made for its presentation and argument. It will be observed that, in the first of these petitions and statements of facts, the probate court was asked to construe the will of the decedent. The question thereby submitted and to be determined by the probate court was whether or not Norma D. Chadwick, who was the widow of the deceased, is entitled to the homestead, and, if so, whether or not, in view of the provisions of the will, it was the intention of the testator to bequeath it to her, in addition to the other property devised to her in the will, or whether it should be considered as a part of the share devised to her, and therefore that she should be charged with it, or its appraised value. This certainly required a construction of the will. The court was necessarily required, in arriving at its judgment or decree, to look into the will to discover the intention of the testator. We think the construction of this will is within the peculiar province of a court of equity.

In U. S. v. Gillespie, which was a case in the circuit court of the United States for New Jersey, reported in 9 Fed. Rep. 74, Nixon, J., delivering the opinion of the court, in the course of determining that the case was one in which the court was asked to construe a will, to declare its trusts and cause them to be executed, uses the following language: “ The general jurisdiction of courts of chancery over questions of this kind, in the administration of estates, is undoubted, and such jurisdiction must be exercised by this. court sitting in equity, when the proper parties appear to invoke it.” This was a case, it is true, where the cestui que- - trust asked for the construction of the will, and' it may-have been for this reason that the court assumed jurisdiction; but in Rosenberg v. Frank, 58 Cal. 387, it was held,-., in substance, that “the jurisdiction to construe a will exists-, and is exercised whenever its terms are really difficult or. doubtful, or their validity is contested, without reference to. tbe presence or absence of any trust.” See 3 Pom. Eq. Jur. §1157; 1 Pom. Eq. Jur. §316. “The construction of a will, and its force and effect, is a proper question to be determined by a court of equity.” 3 Redf. Wills, 60.

In the second petition the question presented to the probate court was whether or not the property therein specified was, for the purpose of its distribution under the will, real estate or personal property, as under the'terms of the will it was to be distributed differently, according to which of the. above classes of property it belonged. But the determination of this question was also within the domain of equity jurisdiction. The inquiry as to whether or not this was to be deemed to be real estate or personal property, for the purpose of distribution, according to the provisions of the will, should be addressed to a court of chancery.

To authorize the probate court, therefore, to entertain both or either of the foregoing petitions, required the possession by it of chancery powers. It must be a court of equity. Is it such a court? The answer to this question depends upon the proper construction of the law of congress, or what is generally known as the organic act, instituting this court. The following is the provision of this act, so far as it relates to the jurisdiction of the probate court: “ The probate courts of the territory of Montana, in their respective counties, in addition to their probate jurisdiction, are authorized to hear and determine civil causes wherein the damage or debt claimed does not exceed $500, and such criminal cases arising under the laws of the territory as do not require the intervention of a grand jury; but they shall not have jurisdiction of any matter in controversy when the title or right to the peaceable possession of land may be in dispute, or of chancery or divorce cases; and in all eases an appeal may be taken from any order, judgment or decree of the probate courts to the district court.” E. $. U. S. § 1932. This provision is applicable only to the territory of Montana. Another provision common to all the territories reads as follows: “The supreme court and the district courts, respectively,of every territory, shall possess chancery, as well as common law, jurisdiction.” U. S. E. S. § 1868. By probate jurisdiction in section 1932 is meant the exercise of the ordinary power of what, ex vi termini, is generally understood to be the authority of courts of that name. They derive their origin from the ecclesiastical courts of England, and this fact suggests the character of their powers. Unless otherwise regulated by statute, they have a ■ special mode of procedure, and are subject to rules that had their origin in the ecclesiastical courts, and issues of fact are not tried by jury. Although they do not proceed according to the rules of the common law of England and this country, yet they are recognized by it, and their jurisdiction is as well defined and understood as is that of our other courts of law and equity. Their powers are limited, unless extended by statute, and are confined to the establishment of wills, the settlement and management, or, in other words, administration, of decedents’ estates, the supervision of the guardianship of infants, the control of their property, the allotment of dower, and other powers pertaining to the same general subject.

This is the character of powers recognized by the term “probate jurisdiction,” as used in the foregoing act of congress. Ferris v. Higley, 20 Wall. 375; Mayberry v. Kelley, 1 Kan. 116; People v. Durell, 1 Idaho, 44; Moore v. Koubly, id. 55. These powers can only be extended by competent legislation. As bearing upon this subject, we quote from Carey’s Probate Law, § 624, in speaking of the jurisdiction of probate courts as affected by legislation: “Andas this determination of the rights of parties in an estate, disposed of by will, necessarily involves a construction of the will, it seems that probate courts, under such statutes, are (as no probate courts ever were before) courts of construction as to wills, of real as well as personal property, and may exercise the jurisdiction as fully as a court of equity, and decree a trust in the property of the estate upon equitable principies.” The citations are to the decisions of the supreme court of Wisconsin, in which state the equitable jurisdiction referred to exists by virtue of statute.

We think that the above provisions of the acts of congress, one of which expressly confers chancery jurisdiction upon the supreme and district courts, and the other of which prohibits its exercise by the probate courts,' leave no doubt as to where the only right to exercise such jurisdiction exists, viz., in the supreme and district courts of the territory. But even if these petitions did not come within the jurisdiction of a court of equity, nevertheless they are plainly not cognizable by the probate courts by virtue of the civil jurisdiction conferred by the foregoing act of congress. Their powers are limited by its provisions, and they can exercise none other. The constitution of the United States and the laws of congress are the fundamental law of the territory, and no legislation which contravenes or is inconsistent with them is of any validity. The probate court of Lewis and Clarke county had no power or authority to entertain the above petitions, nor could the district court upon appeal therefrom, nor this court upon appeal from the district court.

The judgment is reversed and the proceedings dismissed.

Judgment reversed.

MoLeary, J., and Bach, J., concur.