The state constitution in force in California prior to 1880
authorized the legislature to confer upon probate courts
jurisdiction of proceedings for the partition of real estate, as
ancillary or supplementary to the settlement and distribution of
the estates of deceased persons coming within the cognizance of
such courts.
The Legislature of California, under the constitution in force
prior to 1880, conferred upon the probate courts of the state
power, after final settlement of the accounts of a personal
representative and after a decree of distribution, defining the
undivided interests of heirs in real estate in the handy of such
representative (neither the title of the decedent nor the fact of
heirship being disputed), to make partition of such estate among
the heirs so as to invest each separately with the exclusive
possession and ownership of distinct parcels of such realty, as
against coheirs, and such a grant of power does not appear to be
foreign to the jurisdiction usually pertaining to such tribunals in
this country.
The decisions of the Supreme Court of California examined and
shown to be in harmony with the two points above stated.
The difference between distribution and partition of real estate
among heirs pointed out.
A circuit court of the United States has no jurisdiction to set
aside a decree of partition in a state probate court authorized by
law to make it, nor can it refuse to give full effect to the decree
unless the probate court was without jurisdiction in the case.
The jurisdiction of a probate court to make partition of real
estate of a decedent among his heirs is not defeated by the fact
that the proceedings for it were originated by a petition of the
administratrix, who was also an heir at law, asking for a
settlement of her accounts as administratrix and for the
adjudication of her rights as heir at law by partition of the real
estate, the record showing that the court made the decree for the
final settlement and distribution of the estate before it entered
upon the question of partition.
The record in this case does not support the contention that
proper notice of the proceedings in the probate court for the
partition of the real estate was not given to the minor
children.
At the time when the proceedings took place which form the
subject of controversy in this suit, there being no provision of
law in force in California requiring the appointment of guardians
ad litem of infants in probate proceedings, it was
sufficient for them to be represented in such proceedings by an
attorney appointed by the court for that purpose.
Page 128 U. S. 54
This case involved the title to a fifty-vara lot in the City of
San Francisco, numbered two hundred and five on its official map.
It was a part of the separate estate of Horace Hawes, senior, who
died intestate in that city on March 12, 1871, leaving as his only
heirs at law, his widow Caroline Hawes, and two minor children;
Horace Hawes, Junior, born March 22, 1859, and Caroline C. Hawes,
born August 26, 1864. In December, 1871, the widow qualified as
administratrix in the Probate Court of the City and County of San
Francisco. In that capacity, she took possession, as was her duty
under the law of California, of the entire estate of her deceased
husband, and held it subject to the control of that court. Civil
Code, 1384; Code of Civil Procedure, § 1581.
In addition to the above lot, the intestate was the owner at the
time of his death of a large amount of property, principally real
estate, in the Counties of San Francisco and San Mateo, some of
which was community property, and the residue separate property. By
the law of California, upon the death of the husband intestate,
one-half of the community property goes to the surviving wife and
the other to his descendants equally, or, in the absence of
descendants, according to the right of representation, and in the
same manner as the separate property of the husband, and upon the
death of the husband, leaving a widow and more than one child
living, or the lawful issue of one or more deceased children,
one-third of his estate, not otherwise limited by marriage
contract, goes to the widow, and the remainder in equal shares to
his children and to the lawful issue of any deceased child by right
of representation. Civil Code, §§ 163, 164, 687, 1386, 1402.
The estate was divided by proceedings commenced, February 18,
1875, by Mrs. Hawes, administratrix, in the Probate Court of the
City and County of San Francisco. They were instituted for the
purpose of obtaining a final settlement of her accounts, and also
the distribution and the partition of the estate. Such a settlement
was had, and, after a decree of distribution was passed, the court
proceeded to make partition between the heirs, according to their
respective interests, of the various parcels of real estate
remaining in the hands of the
Page 128 U. S. 55
administratrix. By the final decree of partition, rendered April
19, 1875, certain property, including the above lot, was set apart
to the widow, while other lands in that county, and in San Mateo
County, were allotted to the children.
By deed of May 24, 1875, and for the consideration of three
hundred thousand dollars, the widow conveyed the above lot to James
C. Flood. The latter was in possession under his purchase until
August 21, 1876, when he sold and conveyed, for a like sum, to
James G. Fair, who, prior to the present litigation, put upon the
lot substantial improvements of the value of several hundred
thousand dollars.
On the 6th of April, 1881, Caroline C. Hawes intermarried with
James A. Robinson, who had previously, February 24, 1881, qualified
as her guardian.
The present suit was brought, June 6, 1882, in the names of Mrs.
Robinson (by her husband as guardian) and Horace Hawes, Junior, to
recover two undivided thirds of said fifty-vara lot. In the
progress of the cause, Mrs. Robinson was joined with her brother as
an original plaintiff in her own right. The defendant claimed title
under the decree of partition in the probate court. That decree,
the plaintiffs insisted, was void. A jury having been waived, there
was judgment for the defendant, the court below holding that the
proceedings in the probate court were in conformity in all respects
with law.
The foregoing statement forms part of the opinion of the court
in this case. The court below gave no opinion. In addition to that
statement, the Justice who delivered the opinion in this Court has
kindly furnished the following summary of other facts forming
essential parts of the case:
On the 18th of February, 1875, the real estate of the decedent,
remaining in the hands of the administratrix, consisted of what is
known as Mission Block No. 44, the southeasterly part of Mission
Block No. 8, Mission Block No. 2, and the fifty-vara lot No. 205,
in San Francisco; also the Redwood farm and certain villa lots in
San Mateo County. The two parcels first named were acquired in
1860, after the marriage of Mrs. Hawes with the intestate, and were
therefore "common"
Page 128 U. S. 56
property. The other parcels were the separate property
of the decedent. All those parcels were in the hands of the
administratrix because, by the law of California, a personal
representative, whether executor or administrator, is required to
take possession of all the estate, real and personal, of the
decedent, and his possession for the purpose, among other things,
of partition is that of the heirs or devisees, although their
possession is subject to his for purposes of administration. Code
of Civil Procedure § 1581.
On the day last named, Caroline Hawes instituted proceedings in
the Probate Court of the City and County of San Francisco to obtain
a final settlement of her accounts and to have a distribution and
partition of the estate remaining in her hands, as administratrix,
between herself and the minor children according to their
respective rights and pursuant to the statute in such cases made
and provided. To that end, she prayed that an order be made
"directing that all persons interested in this estate appear
before this Court at a time and place to be specified, not less
than four, or more than ten weeks from the time of making said
order, to show cause why an order should not be granted directing
that partition be made in said estate, and that distribution be
made of the estate of Horace Hawes, deceased, and that partition be
made of the real estate thereof, among the persons entitled
thereto, or if the same cannot otherwise be fairly divided, that
the same be sold and the proceeds distributed among those entitled,
or that such other or further or different order may be made as
will be just and proper in the premises."
Upon that petition, an order was made that all persons
interested in the estate appear before the court on the 23d of
September, 1875, to show cause why the final account filed by the
administratrix should not be settled, allowed, and approved. That
order also declares:
"And whereas said account is for final settlement, and it duly
appearing that said estate is ready for distribution and that, upon
confirmation of said final account, distribution and partition of
all said estate to all persons entitled thereto has been duly
demanded: "
Page 128 U. S. 57
"It is further ordered that all persons interested in said
estate be and appear before said court at the time and place
aforesaid, without further notice or proceeding therefor, and then
and there show cause, if any they have, why distribution of the
residue of said estate should not be made among the heirs at law of
said deceased according to law and the respective rights of all the
parties, and also at the same place, immediately after decree of
distribution of said estate is made, without further notice, to
show cause why said court shall not make an order appointing
commissioners, or a commissioner, as it may seem best, to make
partition and division of said estate among the heirs at law of
said deceased according to the respective rights of the parties and
the decree of distribution, and to set aside to each his and her
share according to the proportions decreed to him, her, or them, or
to report his or their inability to make partition of the whole or
certain part or parts of said estate without sale, or without
prejudice or inconvenience, and also to report and find the true
value of all said real estate belonging to said estate."
"And it is further ordered that notice of the foregoing be given
by publication and that a copy hereof be published once a week for
four successive weeks before said 23d day of March, 1875, in the
Daily Examiner, a daily newspaper printed and published in said
city and county."
Subsequently the probate court made the following order:
"Whereas Chas. H. Sawyer, a competent attorney at law, has
hitherto represented Horace Hawes and Caroline C. Hawes, minors,
heirs of said deceased:"
"It is now by the court here ordered that said Chas. H. Sawyer,
an attorney at law and of this court, be and is hereby appointed to
represent said minors, Horace Hawes and Caroline C. Hawes, in the
partition and distribution of said estate and all other
proceedings, when all of the parties in said estate or said heirs
are required to be notified thereof."
"Done in open court this 29th day of March, 1875."
On the same day, a decree was passed,
"J. C. Bates appearing on behalf of said administratrix, and
Chas. H. Sawyer, Esq., appearing on behalf of Horace Hawes and
Caroline
Page 128 U. S. 58
C. Hawes, children of said deceased,"
which found and declared: that it appeared to the satisfaction
of the court that due and sufficient notice of the time and place
of hearing of said petition for distribution and partition had been
given, as required by law; that the final accounts of the
administratrix had been duly settled by the court, and that the
estate was "in proper condition for distribution and partition, and
to be finally closed;" that certain portions of said real estate
were common property, and the residue was separate property; that
the widow was entitled to an undivided half, and the two children
together to an undivided half, of the former, while the widow and
the children were each entitled to an undivided one-third of the
latter. It was adjudged and decreed that all the acts and records
of the administratrix, appearing upon the records of the estate, be
approved and confirmed, and that the residue of said estate "be and
the same is hereby distributed" as follows: one undivided half of
Mission Block No. 44, and the southeasterly part of Mission Block
No. 8, less a certain school lot, to Caroline Hawes, and the other
undivided half to the two children, and an undivided third to the
widow of Mission Block No. 2, the fifty-vara lot No. 205, and of
the lands in San Mateo County, and the remaining two-thirds
thereof, undivided, to the children; share and share alike. The
decree concludes with a particular description of the several
parcels of land so distributed.
The judgment roll of the proceedings in the probate court also
contains this order:
"The petition of Caroline Hawes, administratrix and heir at law
of the estate of Horace Hawes, deceased, for partition of said
estate according to law coming on regularly to be heard this 29th
day of March, 1875, immediately after the decree distributing said
real estate being made, J. C. Bates appearing for said petitioner,
and Chas. H. Sawyer, Esq., appearing for and representing Horace
Hawes and Caroline C. Hawes, minor heirs of said deceased, and upon
consent in open court of all parties interested to the appointment
of James L. King, sole commissioner for the purposes of partition
and division of the estate of said deceased: "
Page 128 U. S. 59
"And said court deeming it just and proper that said James L.
King be appointed sole commissioner for such purposes, and all and
singular the law and the premises being by the court here seen,
heard, understood, and fully considered:"
"Whereupon it is now by the court here ordered, adjudged, and
decreed that partition and division of said real estate, described
in the decree of distribution herein, be made in accordance with
the rights of the parties as determined by said decree of
distribution."
"And it is further ordered that the said James L. King be and he
is hereby appointed sole commissioner for that purpose, and whose
duty it shall be to make partition and division of said real estate
described in said decree of distribution in accordance with the
rights and interests of the respective parties as therein
determined, and make report of the proceedings and partition in
writing to this court."
"Done in open court this twenty-ninth day of March, A.D.
1875."
On the second of April, 1875, Charles H. Sawyer, as said
attorney for the minor heirs, and J. C. Rates, as attorney for the
widow and administratrix, acknowledged service of a written notice
from King, as commissioner, that he would, on the eighth day of
that month and year at his office, in the City of San
Francisco,
"proceed to make partition of the property described in the
decree of distribution in [of] said estate, in accordance with the
rights of respective parties as therein described."
On the 13th of April, 1875, the commissioner made his report, in
which it is stated that, in making the division and partition of
the property, he was attended by Mr. Sawyer, as attorney for the
minor heirs of the decedent, and by Mr. Bates, as attorney for the
widow; that after a thorough examination of the premises, he made
the partition and division, the estate in each county being divided
separately among all the heirs as if there were no other estate to
be divided. He allotted to the widow and the two children each an
undivided one-third of all the land in San Mateo County; to the
widow, one-half, and to the children, one-fourth each, of Mission
Block No. 44, in
Page 128 U. S. 60
the City of San Francisco, each part being described by metes
and bounds; to the widow, the southeasterly part of Mission Block
No. 8, in the same city; to the children, each, one-half of Mission
Block. No. 2, in San Francisco, each part being described by metes
and bounds, and to the widow, the whole of said fifty-vara lot,
being 1,372 feet square. This report was confirmed on the 19th of
April, 1875, the order of confirmation reciting, among other
things, the appearance of Bates for the widow and of Sawyer as the
attorney appointed to defend for the minor heirs.
Chapter X of the Code of Civil Procedure treats "of accounts
rendered by executors and administrators, and of the payment of
debts." Among the provisions in that chapter is one to the effect
that if the account rendered by an executor or administrator
"is for a final settlement, and the estate is ready for
distribution and partition, the notice thereof required to be
published must state these facts, and on confirmation of the final
account, distribution and partition of the estate to all entitled
thereto must be immediately had, without further notice or
proceeding."
The succeeding chapter relates to the "Partition, Distribution,
and Final Settlement of Estates." By § 1665 it is provided that
"Upon the final settlement of the accounts of the executor or
administrator, or at any subsequent time upon the application of
the executor or administrator or of any heir, legatee, or devisee,
the court must proceed to distribute the residue of the estate in
the hands of the executor or administrator, if any, among the
persons who by law are entitled thereto."
"Section 1666. In the order or decree, the court must name the
persons and the proportions or parts to which each shall be
entitled, and such persons may demand, sue for and recover their
respective shares from the executor or administrator, or any person
having the same in possession. Such order or decree is conclusive
as to the rights of heirs, legatees, or devisees, subject only to
be reversed, set aside, or modified on appeal."
"Section 1668. The order or decree may be made on the
Page 128 U. S. 61
petition of the executor or administrator, or of any person
interested in the estate. Notice of the application must be given
by posting or publication, as the court may direct, and for such
time as may be ordered. If partition be applied for as provided in
this chapter, the decree of distribution shall not divest the court
of jurisdiction to order partition unless the estate is finally
closed."
"Section 1675. When the estate, real or personal, assigned by
the decree of distribution to two or more heirs, devisees, or
legatees is in common and undivided, and the respective shares are
not separated and distinguished, partition or distribution may be
made by three disinterested persons, to be appointed commissioners
for that purpose by the probate court or judge, who must be duly
sworn to the faithful discharge of their duties. A certified copy
of the order of their appointment, and of the order or decree
assigning and distributing the estate, must be issued to them as
their warrant, and their oath must be endorsed thereon. Upon
consent of the parties or when the court deems it proper and just,
it is sufficient to appoint one commissioner only, who has the same
authority and is governed by the same rules as if three were
appointed."
"Section 1676. Such partition may be ordered and had in the
probate court on the petition of any person interested. But before
commissioners are appointed or partition ordered by the probate
court as directed in this chapter, notice thereof must be given to
all persons interested who reside in this state, or to their
guardians and to the agents, attorneys or guardians, if any in this
state or such as reside out of the state, either personally or by
public notice, as the probate court may direct. The petition may be
filed, attorneys, guardians, and agents appointed, and notice given
at any time before the order or decree of distribution, but the
commissioners must not be appointed until the order or decree is
made distributing the estate."
"Section 1677. If the real estate is in different counties, the
probate court may, if deemed proper, appoint commissioners for all,
or different commissioners for each county. The estate in each
county must be divided separately among the heirs,
Page 128 U. S. 62
devisees, or legatees, as if there was no other estate to be
divided, but the commissioners first appointed must, unless
otherwise directed by the probate court, make division of such real
estate, wherever situated within this state."
"Section 1678. 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."
"Section 1679. When both distribution and partition are made,
the several shares in the real and personal estate must be set out
to each individual in proportion to his right, by metes and bounds,
or description, so that the same can be easily distinguished,
unless two or more of the parties interested consent to have their
shares set out so as to be held by them in common and
undivided."
"Section 1680. When the real estate cannot be divided without
prejudice or inconvenience to the owners, the probate court may
assign the whole to one or more of the parties entitled to share
therein, who will accept it, always preferring the males to the
females, and among children preferring the elder to the younger.
The parties accepting the whole must pay to the other parties
interested their just proportion of the true value thereof or
secure the same to their satisfaction, or, in case of the minority
of such party, then to the satisfaction of his guardian, and the
true value of the estate must be ascertained and reported by the
Commissioners. When the commissioners appointed to make partition
are of the opinion that the real estate cannot be divided without
prejudice or inconvenience to the owners, they must so report to
the court, and recommend that the whole be assigned as herein
provided, and must find and report the true value of such real
estate. On filing the report of the commissioners and on making or
securing the payment as before provided, the court, if it appears
just and proper, must confirm the report, and thereupon the
assignment is complete, and the title to the whole of such real
estate vests in the person to whom the same is so assigned. "
Page 128 U. S. 63
"Section 1681. When any tract of land or tenement is of greater
value than anyone's share in the estate to be divided, and cannot
be divided without injury to the same, it may be set off by the
commissioners appointed to make partition to any of the parties who
will accept it, giving preference as prescribed in the preceding
section. The party accepting must pay or secure to the others such
sums as the commissioners shall award to make the partition equal,
and the commissioners must make their award accordingly, but such
partition must not be established by the court until the sums
awarded are paid to the parties entitled to the same, or secured to
their satisfaction."
"Section 1682. When it appears to the court, from the
commissioners' report that it cannot otherwise be fairly divided,
and should be sold, the court may order the sale of the whole or
any part of the estate, real or personal, by the executor or
administrator, or by a commissioner appointed for that purpose, and
the proceeds distributed. The sale must be conducted, reported, and
confirmed in the same manner and under the same requirements
provided in article IV, Chapter VII of this Title."
"Section 1683. Before any partition is made or any estate
divided, as provided in this chapter, notice must be given to all
persons interested in the partition, their guardians, agents, or
attorneys, by the commissioners, of the time and place, when and
where they shall proceed to make partition. The commissioners may
take testimony, order surveys, and take such other steps as may be
necessary to enable them to form a judgment upon the matters before
them."
"Section 1684. The commissioners must report their proceedings
and the partition agreed upon by them to the probate court in
writing, and the court may, for sufficient reasons, set aside the
report and commit the same to the same commissioners, or appoint
others, and when such report +s finally confirmed, a certified copy
of the judgment or decree of partition made thereon, attested by
the clerk under the seal of the court, must be recorded in the
office of the recorder of the county where the land lies. "
Page 128 U. S. 64
"Section 1685. When the probate court makes a judgment or decree
assigning the residue of any estate to one or more persons entitled
to the same, it is not necessary to appoint commissioners to make
partition or distribution thereof unless the parties to whom the
assignment is decreed, or some of them, request that such partition
be made."
"Section 1686. All questions as to advancements made or alleged
to have been made by the decedent to his heirs may be heard and
determined by the probate court, and must be specified in the
decree assigning and distributing the estate, and the final
judgment or decree of the probate court, or, in case of appeal, of
the Supreme Court, is binding on all parties interested in the
estate. "
Page 128 U. S. 76
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The principal assignment of error is that, under the
Constitution of California prior to 1880, the probate court could
not take jurisdiction of a proceeding to partition real estate. It
is contended that its control over the estate ceased when it
approved the final settlement, and, by a decree of distribution,
defined the nature and extent of the interests of the heirs in the
remaining estate of the decedent. A partition severing the unity of
possession among the heirs and investing each with a right, as
against the others, to the exclusive possession and ownership of
distinct parts of the estate could not, it is insisted, have been
constitutionally effected by proceedings in a probate court. These
questions have received the most careful consideration, as well
because of their intrinsic importance, as because their
determination by this Court, as we are informed by counsel, may
seriously affect the title to large bodies of land in
California.
Page 128 U. S. 77
Tracing the course of legislation in California in reference to
the jurisdiction and powers of the probate courts of that state, we
find that the first statute upon the subject is that of April 22,
1850, entitled "An act to regulate the settlement of the estates of
deceased persons." Stat. Cal. 1850-1853, c. 129, p. 377. Another
statute was passed May 1, 1851, having a similar title and covering
the same subject. Compiled Laws California 1850-53, c. 120, pp.
377-423. The provisions of these statutes relating to proceedings
in the probate courts for the final settlement, distribution, and
partition of estates were continued without material change, and
the powers of those courts enlarged, by the Code of Civil
Procedure. The sections of the Code bearing upon the question of
the jurisdiction and powers of those courts are too numerous to be
incorporated in this opinion. It is sufficient to say that upon a
careful examination of them, we are of opinion that it was the
intention of the legislature to invest probate courts with
authority, in connection with and as ancillary or supplementary to
the settlement and distribution of estates, to make partition of
real property -- where the title of the deceased owner and the
heirship of the parties are undisputed -- so as to invest each heir
with a separate title to the particular part or parts allotted to
him by the decree of partition. No other interpretation is
consistent with the words of the Code. §§ 1581, 1634, 1665, 1666,
1668, 1675-1686, inclusive.
Does the state constitution prohibit the partition of real
estate by proceedings in a probate court? The contention of the
plaintiffs is that exclusive original jurisdiction of such
proceedings is given to district courts, and that partition is
foreign to the probate system, as recognized in that
instrument.
By the Constitution of California in force at the time partition
was made of the estate in question the judicial power of the state
was
"vested in a supreme court, in district courts, in county
courts, in probate courts, and in justices of the peace, and in all
such recorders' and other inferior courts as the legislature may
establish in any incorporated city or town,"
and the supreme court, the district, county, probate, and
Page 128 U. S. 78
such other courts as the legislature should prescribe, were
declared to be courts of record. Const. of 1849, amended in 1862,
Art. VI, §§ 1, 9. The supreme court is invested with appellate
jurisdiction in all cases in equity; in all cases at law involving
the title or possession of real estate, or the legality of any tax,
impost, assessment, toll, or municipal fine, or in which the
demand, exclusive of interest, or the value of the property in
controversy, amounts to three hundred dollars; in all cases arising
in the probate courts, and in all criminal cases amounting to
felony, on questions of law. It also has
"power to issue writs of mandamus, certiorari, prohibition, and
habeas corpus, and also all writs necessary or proper to the
complete exercise of its appellate jurisdiction."
Id., § 4.
The Constitution of 1849 provided that the district courts
"shall have original jurisdiction, in law and equity, in all
civil cases where the amount in dispute exceeded two hundred
dollars, exclusive of interest. In all criminal cases not otherwise
provided for, and in all issues of fact joined in the probate
courts, their jurisdiction shall be unlimited."
Const. 1849, Art. VI, § 6. But in 1862, the constitution was
amended, and in lieu of that section the following was
substituted:
"The district courts shall have original jurisdiction in all
cases in equity; also in all cases at law which involve the title
or possession of real property, or the legality of any tax, impost,
assessment, toll, or municipal fine, and in all other cases in
which the demand, exclusive of interest, or the value of the
property in controversy, amounts to three hundred dollars, and also
in all criminal cases not otherwise provided for. The district
courts and their judges shall have power to issue writs of habeas
corpus, on petition by or on behalf of any person held in actual
custody, in their respective districts."
Const. 1862, Art. VI, § 6.
The Constitution of 1849 also provided for the election of a
county judge in each organized county, who "shall hold the county
court, and perform the duties of surrogate or probate judge," and,
with two justices of the peace,
"shall hold courts of sessions, with such criminal jurisdiction
as the legislature shall prescribe, and he shall perform such other
duties as
Page 128 U. S. 79
shall be required by law."
It was further provided that
"The county courts shall have such jurisdiction in cases arising
in justices' courts and in special cases as the legislature may
prescribe, but shall have no original civil jurisdiction except in
such special cases."
Const. 1849, Art. VI, §§ 8, 9. But by the amendments of 1862,
the powers and jurisdiction of county courts were greatly enlarged,
as will be seen from the following section adopted in lieu of those
just cited:
"SEC. 8. The county courts shall have original jurisdiction of
actions of forcible entry and detainer, of proceedings in
insolvency, of actions to prevent or abate a nuisance, and of all
such special cases and proceedings as are not otherwise provided
for, and also such criminal jurisdiction as the legislature may
prescribe. They shall also have appellate jurisdiction in all cases
arising in courts held by justices of the peace and recorders, and
in such inferior courts as may be established in pursuance of § 1
of this article in their respective counties. The county judges
shall also hold in their several counties probate courts, and
perform such duties as probate judges as may be prescribed by law.
The county courts and their judges shall also have power to issue
writs of habeas corpus, on petition by or on behalf of any person
in actual custody in their respective counties."
The argument in behalf of the plaintiffs, briefly stated, is
that the legislature could not confer upon county courts
jurisdiction of suits or matters of which original jurisdiction is
given by the Constitution to district courts; that whether a
proceeding for partition be regarded as a case in equity or a case
at law involving the title or possession of real property, it is
within the original, and therefore exclusive, jurisdiction of a
district court, and that the provision requiring county judges to
hold "probate courts" and "perform such duties as probate judges as
may be prescribed by law" did not authorize the legislature to
invest probate courts with jurisdiction, concurrent with district
courts, in cases of which the latter were, by express words, given
original jurisdiction. It must be confessed that some support for
this position is found in the general language employed in
Zander v. Coe, 5
Page 128 U. S. 80
Cal. 230;
People v. Fowler, 9 Cal. 85, and
Caulfield v. Stevens, 28 Cal. 118. In
Zander v.
Coe, the court proceeded upon the ground that the legislature
could not confer on one court the functions and powers which had
been conferred by the Constitution upon another court. In
People v. Fowler, 9 Cal. 85, where the question was as to
the constitutionality of a statute giving an appeal to the court of
sessions from a judgment in a criminal case tried in a justice's
court, the court, referring to
Zander v. Coe and previous
cases, said:
"The rule of construction established by these decisions is
this: that when certain powers are, in form, affirmatively bestowed
on certain courts, they are still exclusive, unless there be some
exception specified in the constitution itself, or the power to
prescribe the cases to which the jurisdiction should extend be
expressly given to the legislature. For example, there is
affirmatively conferred upon the district courts certain original
jurisdiction in civil cases, and there is no specified exception
stated and no power expressly given to the legislature either to
limit or increase this jurisdiction. Therefore it is, as to the
class of cases enumerated, exclusive."
In
Caulfield v. Stevens, 28 Cal. 118, the court
declared to be unconstitutional an act empowering justices of the
peace to try actions for forcible entry or forcible or unlawful
detainer. Its validity was attempted to be maintained under the
general grant to the legislature of power to fix by law the
"powers, duties, and responsibilities" of justices of the peace.
Const. 1862, Art. VI, § 9. But the court held that the subject of
forcible entries and of forcible and unlawful detainers was
expressly committed by the Constitution to county courts, and that
the act there in question was unconstitutional. Whether the court
had in view the rule of constitutional construction announced in
Zander v. Coe and
People v. Fowler it is
impossible to say, for no reference is made to either case. As
pointed out in
Courtwright v. Bear River &c. Mining
Co., 30 Cal. 574, the decision in
Caulfield v.
Stevens went beyond what was necessary to be decided. It might
have been rested entirely upon the ground that the Constitution, in
terms,
Page 128 U. S. 81
invested county courts, declared to be courts of record, with
original jurisdiction of actions of forcible entry and detainer,
and the authority of the legislature to fix by law the powers,
duties, and responsibilities of justices of the peace was burdened
with the condition that "such powers shall not in any case trench
upon the jurisdiction of the several courts of record." Section
9.
Prior to
Caulfield v. Stevens, there were two decisions
in the state court which seem to rest upon a different rule of
constitutional construction:
Estate of De Castro v. Barry,
18 Cal. 97, and
Perry v. Ames, 26 Cal. 372, 382. The first
one was a suit for partition. It was brought in a probate court
under § 264 of the Probate Act of 1851 (Compiled Laws California
1850-53, p. 415), providing that
"Partition of the real estate may be made as provided in this
chapter, although some of the original heirs or devisees may have
conveyed their shares to other persons, and such shares shall be
assigned to the person holding the same, in the same manner as they
otherwise should have been to such heirs or devisees."
That section -- the words "or distribution" being added after
"partition," and "legatees" after "heirs" -- is incorporated into
the Code of Civil Procedure, § 1678. In that case, the point was
made that the probate court had no jurisdiction because the
petitioners were not heirs or devisees, and therefore not entitled
to sue in the form adopted. But the jurisdiction of the probate
court was sustained on the ground that the statute placed alienees
upon the same footing as the original heirs or devisees. While the
authority of the probate court was not assailed upon the ground now
asserted -- namely that the court could not, under the
constitution, entertain jurisdiction of a suit for partition --
that question was necessarily involved in the case, and the decree,
which was affirmed, should have been reversed, if it be true that
the jurisdiction of the probate court, in cases of partition, could
not be made concurrent with that of the district courts. In
Perry v. Ames, the question was as to the jurisdiction of
district courts, under the state constitution as amended in 1862,
in cases of mandamus. It was contended that the supreme
Page 128 U. S. 82
court alone could issue a writ of mandamus, because upon that
court had been conferred, in terms, power
"to issue writs of mandamus, certiorari, prohibition, and habeas
corpus, and also all writs necessary or proper to the complete
exercise of its appellate jurisdiction,"
while no such power was expressly conferred upon the district
courts. It was decided that although the supreme court had been
invested in terms with original jurisdiction in cases of mandamus,
the district courts had the same power, in respect to that species
of remedy, by virtue of the general grant to them of jurisdiction
in all civil cases in equity and in certain specified cases at
law.
But the fullest discussion as to the general question is to be
found in
Courtwright v. Bear River &c. Mining Co.,
above cited. The principal point there was whether a district court
could take jurisdiction of an action in equity to abate a nuisance.
The latter court held that it could not, for the reason that
original jurisdiction of an action to prevent or abate a nuisance
is expressly granted to county courts. Art. VI, § 8. But it was
adjudged by the supreme court of the state that the jurisdiction of
county courts of such actions was only concurrent with that of
district courts, the latter having original jurisdiction of suits
to abate nuisances under the general grant to them of jurisdiction
in cases in equity. It was held that while the Constitution
expressly provides that the powers conferred upon justices of the
peace "shall not in any case trench upon the jurisdiction of the
several courts of record" -- thereby indicating that the
jurisdiction conferred upon the several courts of record should be
exclusive as against justices of the peace -- no analogous
provision was made as between the courts of record, and that
consequently the Constitution did not forbid the legislature from
investing courts of record of the same order and grade with equal
authority over any given cause or subject matter of litigation. The
court also said that
"the cases are numerous which stand opposed to or are
inconsistent with the idea of the complete distribution by the
constitution of judicial power among the several courts, and of
their exclusive jurisdiction of all the subject matters committed
to them. . . . There are many matters, "
Page 128 U. S. 83
it observed, by way of illustration,
"that we need not pause to specify, that would usually and
properly pertain to the court exercising probate powers, as
involved in the settlement of the estates of deceased persons, that
may form the subject matters of suits in equity, and be properly
litigated in the district court."
It referred to
Perry v. Ames as sustaining the theory
of concurrent jurisdiction, and pronounced that doctrine to be
correct. It further said that the
dictum in
Caulfield
v. Stevens must yield to the decision in
Perry v.
Ames.
The doctrine of this case upon the question of the concurrent
jurisdiction of district and probate courts of actions in equity to
abate nuisances was reaffirmed in
Yolo County v. City of
Sacramento, 36 Cal. 193, 195.
The latest decision in the state court to which our attention is
called which bears directly on the question of jurisdiction is
Rosenberg v. Frank, 58 Cal. 387, 402. In that case will be
found some material qualification of the general language used in
previous cases. That was a suit in equity brought by executors in a
district court for the purpose of obtaining a construction of a
will. It was suggested that the probate court had jurisdiction of
the subject matter of the cause and that its jurisdiction was for
that reason exclusive. The court, adhering to the rule announced in
the
Courtwright case, held the authority of the district
court to be ample and plenary under the grant to it of original
jurisdiction in cases in equity. After stating that the
jurisdiction of probate courts is not defined in the constitution,
and referring to the provision that county judges shall "perform
such duties as probate judges as may be prescribed by law," the
court said:
"It seems from the above that the legislature may make the
jurisdiction of the probate judge or court what it pleases, within
the limits of that jurisdiction which is understood as usually
pertaining to probate courts."
As late as
Burroughs v. De Couts, 70 Cal. 371, the
court said:
"Both Burroughs and Seamans are estopped by the decree of
partition in the probate court from setting up title given Soto
adverse to that of their co-tenants under the same title,"
citing Code
Page 128 U. S. 84
of Civil Procedure § 1908; Freeman on Cotenancy and Partition §§
530-532, and Freeman on Judgments § 249.
Whether it is to be fairly deduced from the broad language in
previous decisions that the legislature may confer upon probate
courts concurrent jurisdiction as to every matter embraced within
the grant of original jurisdiction to the district courts is a
question which need not be now decided. It is only necessary to
accept the decision in
Rosenberg v. Frank as furnishing
the constitutional test for determining the extent of the
jurisdiction with which the probate courts of California may be
endowed. The question, therefore, is whether, after the final
settlement of the accounts of a personal representative and after a
decree of distribution defining the undivided interests of heirs in
estate in the hands of such representative -- neither the title of
the decedent nor the fact of heirship being disputed -- the
partition of such estate among the heirs, so as to invest them
separately with the exclusive possession and ownership, as against
co-heirs, of distinct parcels of such realty, is a subject matter
which may be committed to probate courts according to the
jurisdiction usually pertaining to those tribunals.
We lay aside as not open to dispute the proposition that there
is a difference between distribution and partition, and we are
satisfied that that difference was in the mind of the legislature
when it passed the original probate act, as well as when the Code
of Civil Procedure was adopted. As correctly observed by counsel,
distribution neither gives a new title to property nor transfers a
distinct right in the estate of the deceased owner, but is simply
declaratory as to the persons upon whom the law casts the
succession and the extent of their respective interests, while
partition in most, if not in all, of its aspects is an adversary
proceeding in which a remedial right to the transfer of property is
asserted, and resulting in a decree which, either
ex proprio
vigore or as executed, accomplishes such transfer. But this
difference is not sufficient in itself to solve the inquiry as to
whether partition is so far alien to the probate system, as
recognized by the Constitution of California, that the power to
make it could
Page 128 U. S. 85
not be conferred upon probate courts, for, according to the
doctrine of
Rosenberg v. Frank, those tribunals may
exercise whatever powers the legislature may, in its discretion,
confer upon them, within the limits of such jurisdiction as usually
pertains to probate courts. If, at the time the Constitution of
California was adopted, the partition by probate courts among the
heirs of a decedent of undivided real estate was unknown in the
jurisprudence of this country, there would be ground under the
doctrine of
Rosenberg v. Frank to contend that no such
jurisdiction could be conferred upon probate courts in that state.
But such is not the case. In a large number of the states, as the
citations by counsel of statutes and decisions show, probate courts
were and are invested with power to make partition among heirs or
devisees of estates coming within their cognizance for settlement
and distribution. 1 Washburn's Real Property 718, Bk. I, c. 13, �
7; Freeman's Cotenancy and Partition § 550, 2d ed. The significance
of this fact is not materially weakened by the circumstance that
generally where the power of partition is or has been exercised in
this country by probate courts, it has been by express authority of
statutes which were not forbidden by constitutional provisions. The
existence of such statutes in many of the states precludes the
idea, so strongly pressed by plaintiffs' counsel, that when the
Constitution of California was adopted, partition was foreign to
the probate system as administered in this country. Such
legislation, we suppose, has its origin in the belief that it is
convenient, if not desirable, for all concerned in the estate of a
decedent that the same court which supervises the final settlement
of the accounts of a personal representative and ascertains and
declares the interests of heirs in such estate as may remain after
the demands of creditors are satisfied should have the power to
make partition. We are not prepared to say that this belief is not
well grounded. The connection between the administration,
settlement, distribution, and partition of an estate is such that
the power to make partition may be justly regarded as ancillary to
the power to distribute such estate, and therefore not alien to the
probate system as it has long
Page 128 U. S. 86
existed and now exists in many states. For the reasons stated,
and in view of the recent decisions of the highest court of
California, we do not feel at liberty to hold that the legislature
could not constitutionally invest probate courts with jurisdiction
to make partition of an undivided estate among the heirs at law of
the deceased.
It is proper in this connection to say that there is nothing in
Ferris v.
Higley, 20 Wall. 382, upon which the plaintiffs
rely, to show that partition is foreign to the probate system as
administered in this country. The decision there was that in view
of the organic act of Utah, which did not define the jurisdiction
of the probate courts, and in view of the distribution by that act
of judicial power among the various courts of that territory, the
jurisdiction of probate courts must be determined with reference to
the general nature and character of the latter tribunals as
recognized in our system of jurisprudence. An act of the
territorial legislature giving probate courts "original
jurisdiction, both civil and criminal and as well in chancery as at
common law, when not prohibited by legislative enactment," was
therefore held to be unconstitutional. So far from the doctrines of
that case militating against the decision of the Supreme Court of
California in
Rosenberg v. Frank, it was said in
Ferris v. Higley to be the almost uniform rule, among the
people who make the common law of England the basis of their
jurisprudence, to have a distinct tribunal for the establishment of
wills, and the administration of the estates of men dying either
with or without wills, which tribunals are variously called
"prerogative courts," "probate courts," "surrogate courts,"
"orphans' courts," etc., and that to these functions
"have occasionally been added the guardianship of infants, and
the control of their property, the allotment of dower, and perhaps
other powers related more or less to the general subject."
It remains to consider whether the decree of partition is void
upon grounds other than those relating to the constitutionality of
the statute under which the probate court proceeded. The circuit
court of the United States had no jurisdiction to set aside that
decree merely upon the ground of
Page 128 U. S. 87
error, nor could it refuse to give it full effect unless the
probate court was without jurisdiction of the case.
Cooper v.
Reynolds, 10 Wall. 315;
Gunn v. Plant,
94 U. S. 669;
Hall v. Law, 102 U. S. 461,
102 U. S. 464;
Marchand v. Frellsen, 105 U. S. 428.
And in determining the question of jurisdiction, it must be
remembered that probate courts of California have had for many
years the rank of courts of general jurisdiction, and, as said in
Burroughs v. De Couts, 70 Cal. 372, their proceedings,
"within the jurisdiction conferred upon them by the law, are to
be construed in the same manner, and with like intendments, as the
proceedings of courts of general jurisdiction, and their judgments
have like force and effect as judgments of the district
courts."
Probate courts being, then, courts of superior jurisdiction in
respect to the settlement, distribution, and partition of estates
coming within their cognizance, the recitals in the decree of
partition, unless contradicted by the record, will be presumed to
be correct, and every intendment will be indulged in its support.
Settlemier v. Sullivan, 97 U. S. 449;
Cheely v. Clayton, 110 U. S. 708.
With these preliminary observations as to the effect to be given to
the decree and its recitals where the decree is attacked in a
collateral suit, we proceed to examine such of the objections to
its validity as we deem of sufficient importance to notice.
1. It is contended that the administratrix, as such, had no
interest in the partition of the decedent's estate, and could not
in that capacity initiate proceedings therefor. Too much stress is
laid upon the circumstance that the petition in the probate court
was signed by Mrs. Hawes as "administratrix." The petition seeks
something more than a final settlement of her accounts, and a
declaration of the interests of the heirs in the undistributed
estate. It embraces also her claim as widow and heir to a share in
the estate remaining after payment of debts and charges, and
contains a distinct prayer that partition be had between herself
and the children. It shows, as do the orders preceding the decree
of partition, that she sought a settlement of her accounts as
administratrix, and a final adjudication of her rights as heir at
law in the estate remaining
Page 128 U. S. 88
in her hands. If it would have been better practice to have made
partition the subject of a suit entirely separate from the
proceeding for settlement and distribution, the blending of final
settlement, distribution, and partition in the same petition, or in
one suit, did not defeat the jurisdiction of the court, or render
its decree of partition void. The record shows that the question of
partition was not considered or determined in the probate court
until after it had made its decree of final settlement and
distribution.
2. It is contended that proper notice was not given to the minor
children of the proceedings in the probate court. This point is not
sustained by the record of those proceedings. The decree of
distribution recites that it appeared to the satisfaction of the
court that due and sufficient notice of the time and place of
hearing the petition had been duly given, as required by law, prior
to the day set for hearing, and that the attorney appointed by the
court to represent the minor children appeared at the hearing. It
is also shown that this attorney was present at every step of the
proceedings for partition. The decree for partition recites that it
appeared to the satisfaction of the court that the commissioner
appointed to make partition "gave notice to all parties interested,
in all respects as prescribed by the statute in such cases." These
recitals are not contradicted by anything in the record, unless it
be that representation of the minor children, in the proceedings
for settlement, distribution, and partition, by an attorney
appointed by the court, rather than by a guardian
ad
litem, was wholly inadequate to bring them into court. It is
to be remembered that the Code of Civil Procedure expressly
provides that notice of proceedings for partition may be "either
personally or by public notice, as the probate court may direct," §
1676, and if the account presented by the personal representative
be one for final settlement, and the estate be ready for
distribution,
"on confirmation of the final account, distribution, and
partition of the estate to all entitled thereto may be immediately
had, without further notice or proceedings,"
§ 1634. It should also be observed that if the recitals in the
decrees of distribution and partition of due notice be open to
dispute in
Page 128 U. S. 89
this collateral proceeding, it does not appear that the
publication was not made in all respects as required by the order
or court and by the Code.
In this connection, it is insisted that the particular mode
adopted in publishing notice of the proceedings for settlement,
distribution, and partition was not sufficient, in law, to give the
court jurisdiction as to the children. This position is not
tenable. The order to show cause why there should not be a final
settlement and distribution, followed by a partition, according to
the rights of the parties, was very full and explicit, and it was
served in one of the modes by which, under the local law,
jurisdiction could be acquired. The mode adopted was by publication
for "four successive weeks in such newspaper in the county as the
court or judge shall direct." § 1539.
Pearson v. Pearson,
46 Cal. 635. The failure to repeat in the order the names of the
minor children -- whatever force that objection might have had upon
a direct appeal from the decree of partition -- is not a matter
affecting the jurisdiction of the court over the subject matter and
the parties, for the petition and the order appointing an attorney
to represent the minors contained the names in full of all
interested in the proceedings for settlement, distribution, and
partition.
3. It is, however, insisted that the defense for the minor
children -- who are not shown to have had at the time, any general
or special guardian in the county or state -- could only have been
conducted by a guardian, and that the appearance in their behalf by
an attorney, appointed by the court to represent them, did not
bring them into court. This position is based upon §§ 372 and 373
of the Code of Civil Procedure. But those sections, in our opinion,
have reference to civil actions, as distinguished from "special
proceedings." Code of Civil Procedure §§ 20-23, 372, 373. A suit
for partition in a probate court is a special proceeding,
Waterman v. Lawrence, 19 Cal. 218, and the section which
controls the determination of this question is § 1718, part of
Title XI, relating to "Proceedings in probate courts." That
section, among other things, provides that
"At or before the hearing of petitions
Page 128 U. S. 90
and contests for the probate of wills, for letters testamentary
or of administration for sales of real estate, and confirmations
thereof, settlements, partitions, and distributions of estates,
setting apart homesteads, and all other proceedings where all the
parties interested in the estate are required to be notified
thereof, the court must appoint some competent attorney at law to
represent in all such proceedings the devisees, legatees, heirs, or
creditors of the decedent who are minors and have no general
guardian in the county, or who are nonresidents of the state, and
may, if he deem it necessary, appoint an attorney to represent
those interested who, though they are neither such minors or
nonresidents, are unrepresented. The order must specify the names
of the parties for whom the attorney is appointed, who is thereby
authorized to represent such parties in all such proceedings had
subsequent to his appointment. The appearance of the attorney is
sufficient proof of the service of the notice on the parties he is
appointed to represent."
We have not been able to find any provision requiring the
appointment of guardians
ad litem in probate proceedings.
Without considering whether the failure to appoint a guardian
ad litem for minors, where the statute requires it to be
done, would vitiate the decree and make it open to attack
collaterally, it is sufficient to say that the appointment of an
attorney to represent the children in the probate court was
authorized by the statute.
These views are in conformity with the recent decision in
Carpenter v. Superior Court of San Joaquin County, decided
April 21, 1888, and not yet reported. One of the questions there
was as to the validity of certain proceedings for the probate of a
will in which minor heirs were represented by an attorney appointed
by the court, and not by a guardian
ad litem. Reliance was
placed upon the section of the Civil Code, § 372, part of the title
"Parties to Civil Actions," which provides that
"When an infant is a party, he must appear by his general
guardian if he has one, and if not, by a guardian who may be
appointed by the court in which the action is prosecuted, or by a
judge thereof, or a county judge."
It was held that probate proceedings were not civil actions
within
Page 128 U. S. 91
the meaning of that title. The court said:
"The thing which a guardian
ad litem is appointed to do
is to 'represent' the infant in the action or proceeding, Code
Civil Procedure § 372, by which we understand that he is to conduct
and control the proceedings on behalf of the infant. Now the
attorney for minors in probate proceedings is to 'represent' the
minor, Code of Civil Procedure § 1718, and so far as he is
concerned, to conduct and control the proceedings, so that if the
general provisions apply, it would be possible to have two
representatives of the minor in the same contest, neither of whom
would be subordinate to the other. We do not think that such a
result could have been intended."
There are no other questions in the case which we deem it
necessary to discuss. We find no error in the judgment below, and
it is
Affirmed.
MR. CHIEF JUSTICE FULLER was not a member of the Court when this
case was argued, and took no part in its decision.
