MOFFAT, Chief Justice.
This action originated over the proceeds of a life insurance policy issued by the Equitable Life Assurance Society on the life of Robert H. McLaren.
Robert H. McLaren, up to the 21st day of October, 1935, was the holder of and carried the policy. On the date indicated, Robert H. McLaren, at Park City, Utah, signed
in the presence of a notary public and delivered to the notary an assignment and directed delivery to be made to Aurelius Minor McLaren, the assignee. The record discloses delivery was made October 24th, 1935, to Aurelius Minor McLaren. After the assignment Robert H. McLaren died. G. M. Archer was appointed special administrator. The insurance company paid the proceeds of the policy to the special administrator. The check was made payable to “G. M. Archer, special administrator to the estate of Robert McLaren, deceased, and Aurelius Minor McLaren.” Subsequently Archer was appointed the regular administrator. The document because of which the administrator admits and the assignee claims title and right to the insurance carried by the deceased is as follows:
“Form of Collateral Assignment
“To be attached to and retained with the policy
for use as evidence when required.
“For One Dollar, to
him
in hand paid and other valuable considerations (the receipt of which is hereby acknowledged) hereby assign, transfer and set over Policy No.- on the life of
Robert H. McLaren
issued by
“The Equitable Life Assurance Society of the United States with all rights therein, and with all money now or hereafter ¡due or payable thereon, and all dividens, options, benefits or advantages derived therefrom, including the right to surrender said policy at any time and to receive and receipt for the surrender value thereof, to
Aurelius Minor McLaren
whose P. O. address is
1549 South West Temple Street, Salt Lake City, Utah
unless and until the interests of said assignee be duly released in writing and a copy thereof filed with said Society; and-do also for- executors and administrators, guarantee the validity and sufficiency of this assignment to the assignee named therein, - executors, administrators and assigns, and-title to said policy, will forever warrant and defend.
“Provided, however, and it is understood and agreed, that this assignment is to secure the repayment of the sum of- Dollars to the said-and that upon such repayment said assignee, - executors, administrators or assigns, will release the interest hereby conveyed.
“In Witness Whereof,
I
have hereunto set
my
hand — and seal— this 21st day of October, 1935.
“State of
Utah '\
County of
Sum- [
ss.
(Robert H. McLaren) mit
J (seal)
“On this
21st
day of
October, A. D. 1935
in the year of our Lord 1935, before me personally came
Robert H. McLaren
to me known to be the individual — described in and who executed the foregoing assignment, and acknowledged that
he
executed the same.
“ (Notary Sign Here) (L.
F. Anderson)
(Notary Seal)
“Note: When signed by a Corporation, corporate acknowledgment on reverse side hereof must be furnished.”
The administrator having obtained the proceeds of the life insurance policy, and believing the assignee entitled to the full amount of the proceeds of the insurance policy, petitioned the court for authority to turn over the proceeds to the assignee. Due notice of the hearing upon the petition was given.
To the petition a demurrer and an answer and objections were filed on behalf of Thomas S. McLaren, a brother and heir at law of Robert H. McLaren, deceased.
The answer put in issue the validity of the assignment upon the ground that the instrument purporting to be an assignment was made to secure the payment of a debt, that no debt was created or existed or if there had been a debt it had been paid before the death of the insured Robert H. McLaren, deceased.
The hearing of the petition was duly noticed according to the procedure in the probate practice. The matter came on for hearing pursuant to the setting upon the regular probate calendar. Objection was then raised by counsel for contestants, challenging the right or jurisdiction of the court on the ground “that it is an effort in a probate proceeding to quiet title to certain property of the estate” and that protestants were entitled to have the matter heard in a plenary action.
At the hearing upon the petition, answer and objections, the court stated that the petition served as a complaint and
the answer, objections of the protestants and any other objections protestants desired to read into the record would be considered as forming the issues in a plenary action. The court stated, “this is a plenary action.”
The record shows there is an unreported discussion between the court and counsel, after which the court proceeded, evidence was presented and the cause submitted to the court for decision. Findings were proposed and submitted on behalf of both the petitioner and the protestants.
Protestants appeal. The following questions are submitted to this court:
(1) Did the court have jurisdiction to hear and determine whether the administrator should turn over to Aurelius Minor McLaren the proceeds of the life insurance policy? As a matter of jurisdiction the question must be answered in the affirmative. The question implies a matter of procedure and not one of jurisdiction. (The matter of procedure will be later considered.)
(2) Are findings of fact numbered “5” and “6” contrary to or inconsistent, with the finding of fact numbered “8”? This question must be answered in the negative.
All the findings are consistent with and supported by the evidence. The argument of conflict is based upon the construction placed by counsel upon the insurance policy assignment. The assignment is quoted in the finding No. 8. The trial court drew conclusions of law from the assignment and construed it differently than counsel for appellant. We agree with the court’s construction. So construed there is no conflict.
(3) Did the court err in entering judgment awarding to Aurelius Minor McLaren the proceeds of the life insurance policy?
We are of the opinion no error was committed in this regard.
All of the heirs including Aurelius Minor McLaren were served with notice of the hearing of the petition. The court had jurisdiction of the administrator and of the estate.
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MOFFAT, Chief Justice.
This action originated over the proceeds of a life insurance policy issued by the Equitable Life Assurance Society on the life of Robert H. McLaren.
Robert H. McLaren, up to the 21st day of October, 1935, was the holder of and carried the policy. On the date indicated, Robert H. McLaren, at Park City, Utah, signed
in the presence of a notary public and delivered to the notary an assignment and directed delivery to be made to Aurelius Minor McLaren, the assignee. The record discloses delivery was made October 24th, 1935, to Aurelius Minor McLaren. After the assignment Robert H. McLaren died. G. M. Archer was appointed special administrator. The insurance company paid the proceeds of the policy to the special administrator. The check was made payable to “G. M. Archer, special administrator to the estate of Robert McLaren, deceased, and Aurelius Minor McLaren.” Subsequently Archer was appointed the regular administrator. The document because of which the administrator admits and the assignee claims title and right to the insurance carried by the deceased is as follows:
“Form of Collateral Assignment
“To be attached to and retained with the policy
for use as evidence when required.
“For One Dollar, to
him
in hand paid and other valuable considerations (the receipt of which is hereby acknowledged) hereby assign, transfer and set over Policy No.- on the life of
Robert H. McLaren
issued by
“The Equitable Life Assurance Society of the United States with all rights therein, and with all money now or hereafter ¡due or payable thereon, and all dividens, options, benefits or advantages derived therefrom, including the right to surrender said policy at any time and to receive and receipt for the surrender value thereof, to
Aurelius Minor McLaren
whose P. O. address is
1549 South West Temple Street, Salt Lake City, Utah
unless and until the interests of said assignee be duly released in writing and a copy thereof filed with said Society; and-do also for- executors and administrators, guarantee the validity and sufficiency of this assignment to the assignee named therein, - executors, administrators and assigns, and-title to said policy, will forever warrant and defend.
“Provided, however, and it is understood and agreed, that this assignment is to secure the repayment of the sum of- Dollars to the said-and that upon such repayment said assignee, - executors, administrators or assigns, will release the interest hereby conveyed.
“In Witness Whereof,
I
have hereunto set
my
hand — and seal— this 21st day of October, 1935.
“State of
Utah '\
County of
Sum- [
ss.
(Robert H. McLaren) mit
J (seal)
“On this
21st
day of
October, A. D. 1935
in the year of our Lord 1935, before me personally came
Robert H. McLaren
to me known to be the individual — described in and who executed the foregoing assignment, and acknowledged that
he
executed the same.
“ (Notary Sign Here) (L.
F. Anderson)
(Notary Seal)
“Note: When signed by a Corporation, corporate acknowledgment on reverse side hereof must be furnished.”
The administrator having obtained the proceeds of the life insurance policy, and believing the assignee entitled to the full amount of the proceeds of the insurance policy, petitioned the court for authority to turn over the proceeds to the assignee. Due notice of the hearing upon the petition was given.
To the petition a demurrer and an answer and objections were filed on behalf of Thomas S. McLaren, a brother and heir at law of Robert H. McLaren, deceased.
The answer put in issue the validity of the assignment upon the ground that the instrument purporting to be an assignment was made to secure the payment of a debt, that no debt was created or existed or if there had been a debt it had been paid before the death of the insured Robert H. McLaren, deceased.
The hearing of the petition was duly noticed according to the procedure in the probate practice. The matter came on for hearing pursuant to the setting upon the regular probate calendar. Objection was then raised by counsel for contestants, challenging the right or jurisdiction of the court on the ground “that it is an effort in a probate proceeding to quiet title to certain property of the estate” and that protestants were entitled to have the matter heard in a plenary action.
At the hearing upon the petition, answer and objections, the court stated that the petition served as a complaint and
the answer, objections of the protestants and any other objections protestants desired to read into the record would be considered as forming the issues in a plenary action. The court stated, “this is a plenary action.”
The record shows there is an unreported discussion between the court and counsel, after which the court proceeded, evidence was presented and the cause submitted to the court for decision. Findings were proposed and submitted on behalf of both the petitioner and the protestants.
Protestants appeal. The following questions are submitted to this court:
(1) Did the court have jurisdiction to hear and determine whether the administrator should turn over to Aurelius Minor McLaren the proceeds of the life insurance policy? As a matter of jurisdiction the question must be answered in the affirmative. The question implies a matter of procedure and not one of jurisdiction. (The matter of procedure will be later considered.)
(2) Are findings of fact numbered “5” and “6” contrary to or inconsistent, with the finding of fact numbered “8”? This question must be answered in the negative.
All the findings are consistent with and supported by the evidence. The argument of conflict is based upon the construction placed by counsel upon the insurance policy assignment. The assignment is quoted in the finding No. 8. The trial court drew conclusions of law from the assignment and construed it differently than counsel for appellant. We agree with the court’s construction. So construed there is no conflict.
(3) Did the court err in entering judgment awarding to Aurelius Minor McLaren the proceeds of the life insurance policy?
We are of the opinion no error was committed in this regard.
All of the heirs including Aurelius Minor McLaren were served with notice of the hearing of the petition. The court had jurisdiction of the administrator and of the estate. The protesting heir or heirs voluntarily appeared and sought the judgment of the court as to whether the proceeds of the insurance policy should, by the administrator, be turned over to Aurelius Minor McLaren.
The contestants, and any other heirs who voluntarily or otherwise appeared and sought the judgment of the court, submitted themselves to the jurisdiction of the court as far as they were concerned with the issues upon which they sought the judgment of the court.
Whether Aurelius Minor McLaren was served otherwise than by notice to all the heirs the same as those who appeared as contestants, is not disclosed. He neither filed nor signed any pleadings in the proceeding as assignee or otherwise nor were any signed by an attorney as counsel for him until after the hearing. As an heir he was served with notice by mail, and the bill of exceptions settled by the trial court lists the attorney for the estate as appearing for the assignee, and such attorney as attorney for both the administrator and the assignee stipulated to the settlement of the bill of exceptions.
Section 102-14-17, Revised Statutes of Utah, 1933, provides :
“All issues of fact joined in probate and guardianship proceedings must be tried in conformity with the requirements of the code of civil procedure, and in all such proceedings the party affirming is the plaintiff, and the one denying or avoiding is the defendant. Judgments therein, on the issues joined as well as for costs, may be entered and enforced by execution or otherwise by the court as in civil actions.”
Again we say, the record shows that there was an unreported discussion between the court and counsel, after which evidence was presented and the cause was submitted to the court. The transcript settled by the trial court as
and for a bill of exceptions, twice recites that the proceedings were “In Probate.”
Based upon the oral decision of the court, proposed findings of fact, conclusions of law and judgment were submitted by both parties to the court. Is such procedure authorized by the Probate Code? The court when exercising its probate powers is bound by the procedure and limitations of the Probate Code. The probate procedure is designed for the determination of uncontested matters and is usually an ex parte proceeding.
That probate court as such, is limited in its procedure, to the determination of uncontested matters is generally recognized. In the case of
Hampshire
v.
Woolley,
Judge, 72 Utah 106, 269 P. 135, it was held that under the provisions of Secs. 7733 and 7734 of the Probate Code, Compiled Laws of Utah, 1917, now Section 102-11-18 and 102-11-19, Revised Statutes of Utah, 1933, the court when sitting in probate is not given power to hear and determine title to property where the same is held under claim of title. Section 7733, supra, now 102-11-18, supra, specifies the procedure to require a person suspected of having taken wrongful possession of property belonging to an estate to appear and submit to an examination touching such matters. Neither the Hampshire v. Woolley case nor the statute require that a new and independent action must be commenced to determine issues relating to adverse claims of an estate. What is required is that all such disputed matters be heard and determined by the court according to the provisions of the Code of Civil Procedure.
In a probate proceeding the party in a representative capacity must stand before the court free from pledges and commitments with no advantages or handicaps. The proper procedure therefore, when a contested question arises in a probate proceeding involving the determination of disputed facts, is to strike the matters from the probate calendar and transfer it to the calendar of civil cases to be heard and determined as a contested civil matter.
But if the parties come before the court with the issues defined and are ready to proceed, and no objections are made to the matter being heard, and the court in the hearing follows the rules of practice in contested civil actions, the court is not in its nature changed nor its jurisdiction affected, because it proceeds according to the rules applicable to a cause under another prescribed procedure. This statement assumes that no objections are made, that the pleadings sufficiently define the issues, that no request for a jury has been made or is waived, and no delay is desired. Under such circumstances the making of a formal order of transfer from one calendar to another does not change the nature of the proceeding nor affect the rights of the parties.
The matter of transferring a cause from the probate calendar to a civil calendar in the same court is not a matter of jurisdiction but one of procedure. The relief and the rights which may be involved or to which the parties may be entitled are based upon and measured by the established rules of procedure. Had appellants claimed they had not been properly served or had they appeared for a special purpose or had they claimed the issues were not properly before the court, or that they were hastily summoned, or were unprepared for the trial, or had they indicated that they desired a jury trial upon the issues or assigned any other pertinent reasons for objecting to proceeding other than that of jurisdiction the court would or should have continued the cause to be tried at a time and according to the requirements of the Code of Civil Procedure.
Except as indicated no request was made. No error is assigned or argued with respect to the overruling of the objection to the introduction of evidence. Proceeding to hear the cause without objection after consultation with the court is deemed a waiver of the objection to the hearing. The proceedings were apparently regular. There is no suggestion that any one’s rights were
affected or any one prejudiced, because the court proceeded to hear the cause as it did.
In view of the construction of the assignment of the insurance policy made by the trial court, with which we have indicated our agreement, a retrial would reach the same result. It therefore follows that the judgment should be affirmed. Such is the order. Respondents to recover costs.
LARSON and McDONOUGH, JJ., concur.