Moyes v. Moyes , 60 Idaho 601 ( 1939 )

I do not agree with that portion of the opinion holding:

"The will did not bequeath the property to the heirs (appellant and respondent) either in common or jointly but rather in severalty."

In my opinion the will bequeathed the property in common or jointly, each heir receiving title to an undivided one-half interest in the estate upon the death of the mother.

Neither am I in accord with that portion of the opinion which holds:

"In matters of probate arising within the exclusive probate jurisdiction, all proceedings must be had and relief must be originally sought in the probate court. The jurisdiction of the district court in such matters is only appellate."

In probate matters courts of equity have jurisdiction to vacate and set aside decrees of distribution where the same have been obtained as a result of extrinsic or collateral fraud, such fraud being permissible of proof and justifying the interference of a court of equity. (Donovan v. Miller, 12 Idaho 600,88 P. 82, 10 Ann. Cas. 444; 9 L.R.A., N.S., 524;Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; UnitedStates v. Throckmorton, 98 U.S. 61, 65, 25 L. ed. 93, 96; Picov. Cohn, 91 Cal. 129, 25 P. 970, 27 P. 537, 25 Am. St. 159, 13 L.R.A. 336; Sohler v. Sohler, 135 Cal. 323, 67 P. 282, 87 Am. St. 98; Baker v. O'Riordon, 65 Cal. 368, 4 P. 232.)

A careful examination of the record discloses that the fraud complained of was intrinsic and not extrinsic or collateral, that is, it was not such fraud as will justify the interference of equity. (Donovan v. Miller, supra; United States v.Throckmorton, supra; Pico v. Cohn, supra; Lynch v. Rooney,112 Cal. 279, 44 P. 565; Langdon v. Blackburn, 109 Cal. 19,41 Pac. 814.)

The judgment must be reversed and the cause should be dismissed without prejudice. With reference to whether or not respondent may obtain relief in the probate court I express no opinion.