Jasperson v. Jacobson , 224 Minn. 76 ( 1947 )

I am of the opinion that the probate court had jurisdiction to make its order of July 18, 1946, appointing plaintiff guardian of the estate of Herbert M. Jasperson; that hence said order was not subject to collateral attack; and, in consequence, that the filing in the register of deeds' office of a certified copy of the petition in the guardianship proceedings under the provisions of § 525.543 had the effect of rendering void the real estate transaction here involved.

1. We have held that the probate court's jurisdiction includes not only "the appointment of guardians and the control over their official actions, but the care and protection of theestates of the wards, formerly vested in the court of chancery." State ex rel. Martin v. Ueland, 30 Minn. 277, 282,15 N.W. 245, 247; In re Guardianship of Strom, 205 Minn. 399,403, 286 N.W. 245, 248; In re Guardianship of Overpeck,211 Minn. 576, 2 N.W.2d 140. Once such jurisdiction is acquired in the manner prescribed by law, orders subsequently made therein are not subject to collateral attack. Fridley v. Farmers M. Sav. Bank, 136 Minn. 333, 162 N.W. 454, L.R.A. 1917E, 544; In re Estate of Barlow, 152 Minn. 249, 251,188 N.W. 282, 283; Shapiro v. Larson, 206 Minn. 440, 289 N.W. 48.

2. Minn. Const. art. 6, § 7, confers the described jurisdiction. M.S.A. § 525.81 (formerly Mason St. 1927, § 8708), provides that such jurisdiction may be invoked by the filing of a proper petition in all proceedings in said court, and we have repeatedly held that such filing, and not theservice or publication of the statutory notice, gives the probate court jurisdiction over the estate of an incompetent, as well as that of a decedent. Hanson v. Nygaard, 105 Minn. 30,117 N.W. 235, 127 A.S.R. 523; Scott v. Whitely, 168 Minn. 74,209 N.W. 640; State ex rel. Degen v. Freeman, 168 Minn. 374,210 N.W. 14; In re Estate of Gilroy, 193 Minn. 349,258 N.W. 584; In re Guardianship of Carpenter, 203 Minn. 477,281 N.W. 867. This rule is otherwise expressed in 5 Dunnell, Dig. § 7783e, as follows:

"Administration proceedings are in rem and jurisdiction is not acquired by notice to interested parties. Notice may bemade jurisdictional by statute, but it is not a requirement ofdue process of law. If a statute requires a notice, but does not make itjurisdictional [§ 525.55 does not make jurisdictional the service of the notice therein specified], the want of noticedoes not render subsequent proceedings void and subject tocollateral attack, but merely renders them voidable on directattack." (Italics supplied.)

The rule is more explicitly stated in Hanson v. Nygaard,supra, as follows (105 Minn. 37, 117 N.W. 238,127 A.S.R. 523):

"* * * jurisdiction of the probate court over the estate of a deceased person attaches * * * by the presentation to the court of a proper petition * * * the failure to give proper notice to interested parties * * * is an irregularity which renders the subsequent proceedings voidable and subject to be set aside on motion or appeal. * * * the validity of the subsequent proceedings cannot be questioned in a collateral proceeding."

3. Notwithstanding an early case contra (Davis v. Hudson,29 Minn. 27, 11 N.W. 136), we have applied the doctrine of Hanson v. Nygaard uniformly to matters involving the property ofincompetents under guardianship, as well as to estates of deceased persons. Thus, in Scott v. Whitely, supra, involving aguardianship matter, we said (168 Minn. 76, 209 N.W. 641):

"Jurisdiction depends upon the filing of the petition and notupon notice. Hanson v. Nygaard, 105 Minn. 30, 117 N.W. 235,127 Am. St. 523. But the notice contemplated by G. S. 1923, § 8925, is for the benefit of the incompetent and is intended toadvise him of the acts of others concerning him. Its necessity does not exist when he makes the petition himself. It, then, is a useless and unnecessary act which the law neither requires nor expects. No one but the party entitled to the notice canraise the question of want of notice." (Italics supplied.)

While it may be that jurisdiction of the person, as distinguished from the property, of the ward may be delayed until personal service of the notice upon the ward, jurisdiction over the ward's estate is acquired immediately upon the filing of the petition. This distinction is set forth in State ex rel. Degen v. Freeman, 168 Minn. 374,375, 210 N.W. 14, as follows:

"The probate court by the nature of its organization has jurisdiction over insane persons, and jurisdiction to render such a judgment as was entered. * * * The filing of a properpetition gives it jurisdiction of the subject matter of theparticular case, and by service of a warrant or process, or by his voluntary appearance, it acquires jurisdiction of the person." (Italics supplied.)

In In re Estate of Gilroy, supra, we stated (193 Minn. 351,258 N.W. 586):

"* * * He [appellant] concedes that the probate court is the only court having jurisdiction of the estates of deceased persons and persons under guardianship. The state constitution so provides. Art. 6, § 7. The legislature is without power to curtail or limit the general jurisdiction thus conferred by the constitution, * * *. Its general jurisdiction attaches at onceupon the presentation to it of a proper petition by some personentitled to take such action." (Italics supplied.)

In re Guardianship of Carpenter, supra, expressed the rule as follows (203 Minn. 480, 281 N.W. 869):

"* * * The probate court is by the constitution invested with jurisdiction of persons under guardianship (art. 6, § 7), but the statute regulates the manner in which a probate court is authorized to take jurisdiction of any particular estate or person. 2 Mason Minn. St. 1927, § 8708, provides that a particular probate court is invested with authority to proceed when a petition is filed with it respecting a matter within itsjurisdiction. An order made by the probate court without such petition in a matter within its jurisdiction is void and of no effect." (Italics supplied.)

4. Perhaps the reason for the departure from the rule of Davis v. Hudson, 29 Minn. 27, 11 N.W. 136, supra, might be found in the language of Mr. Justice Mitchell in Kurtz v. St. Paul Duluth R. Co. 48 Minn. 339, 342, 51 N.W. 221,31 A.S.R. 657, wherein he referred thereto, but stated:

"* * * Notice of the hearing for such appointment is not aconstitutional prerequisite to the jurisdiction to name aguardian. Appointing a guardian deprives no one of his property, and does not change or affect the title of it. Letters of guardianship are merely a commission which places the property of the ward in the care of an officer of the court as custodian, and in its effect is not essentially different from the appointment of a receiver, or temporary administrator, a jurisdiction which can be and frequently is exercised before service of any process. The matter of notice of an applicationfor the appointment of a guardian is, therefore, purely amatter of statutory requirement. * * * My own opinion is thatwhen it appears that the person or property was the subject ofguardianship, and that the letters were issued by the properprobate court, as were the facts here, the letters ofguardianship are not subject to collateral attack, but, likeletters of administration, are conclusive evidence of the dueappointment of the person therein named, until reversed onappeal, or revoked by the court which granted them. This is therule in most jurisdictions; and the practical difficulties andembarrassments resulting from a different rule are veryapparent." (Italics supplied.)

In no subsequent case was the doctrine of the Davis case adhered to.

5. It is stated in the majority opinion that the jurisdiction granted in guardianship matters must be exercised through proceedings in personam exclusively. This would seem to ignore the distinction between the jurisdiction over the person in guardianship matters and jurisdiction over the property of an alleged incompetent, as brought out clearly in State ex rel. Degen v. Freeman, 168 Minn. 374, 210 N.W. 14, supra.

In an early case, State ex rel. Martin v. Ueland, 30 Minn. 277,280, 282, 15 N.W. 245, 246, 247, expressing the principle that in guardianship matters our probate courts operate in lieu of the old chancery courts and are governed by the same equitable principles, Mr. Justice Mitchell stated:

"* * * in most of the American states, courts called probate, surrogate, or orphans' courts were established at an early day for the settlement of the estates of decedents, and the determination of all questions arising in the course of administration, to the practical exclusion of equity jurisdiction over such matters. * * * Thus an important branch of equity jurisdiction, * * * was transferred to these courts. * * *

* * * * *

"* * * Its [probate court's] jurisdiction over the estates of persons under guardianship includes not only the appointment of guardians and the control over their official actions, but the care and protection of the estates of the wards, formerly vested in the court of chancery."

While the rule has often been expressed that "equity acts inpersonam" (2 Dunnell, Supp. § 3136), it is well settled that the legislature may confer upon equity courts a jurisdiction over property within the state as distinct from and independent of any personal jurisdiction acquired over the owner thereof. This rule is expressed in 19 Am. Jur., Equity, § 24, as follows:

"* * * The state has power to enact statutes under which the interests of persons in property within the state shall be affected so far as that property alone is concerned, even though such persons may not have been personally served with process within the state. This power has been very generally exercised."

Minnesota is in accord with these principles. In Smith v. Smith, 123 Minn. 431, 433, 144 N.W. 138, 139,52 L.R.A.(N.S.) 1061, we stated the rule as follows:

"* * * If the enforcement of the decree is dependent solely upon the inherent powers of a court of chancery, the decree is, of necessity, a decree in personam, because, generally, equity jurisdiction is exercised in personam and depends upon the control of the court over the person of the parties. If, however, there is statutory power given to the court to effectuate the decree by passing title to the property, then the proceeding becomes in the nature of a proceeding in rem, and in such case service by publication upon nonresidents will confer jurisdiction to deal with the property."

As stated in 2 Dunnell, Supp. § 3136:

"The procedural maxim that 'equity acts in personam' must not be confused with the substantive right itself. This manner of procedure is no doubt due to an historical accident. * * * It seems much simpler in modern times, when we regard the principles of equity as constituting as much a part of our law as those of common law, to regard equitable rights with respect to property as rights in rem in the same sense that common-law rights are. * * * That equity acts in personam was one of its earliest maxims. Yet this principle was strictly applied only during the early classical period, and then, probably, to avoid conflict with law judges. Apart from methods of enforcement, most equitable remedies deal essentially with property rights. At present, moreover, equity is exercising an increasing jurisdiction in rem. This tendency, supported by many authors, may be attributed partly to reasons of convenience and necessity, partly to the merger of law and equity, and partlyto legislation." (Italics supplied.)

From the foregoing authorities, it is apparent that while the probate court may be governed in substance by equitable rules and principles in guardianship matters, there is nothing therein which constitutes a bar to legislative authority granting to probate courts jurisdiction over the property of incompetents as proceedings in rem without the service of process required in in personam proceedings. Likewise, it is clearly established by our decisions that there is no constitutional restriction against such legislative power. Hanson v. Nygaard, supra.

6. Accordingly, when the legislature enacted § 525.81, conferring jurisdiction upon the probate courts of this state in all matters, including guardianship proceedings, by the filing of the petition specified therein, its action was not in conflict with either the state constitution or the well-established equitable principles above set forth.

Likewise, when it enacted § 525.543, which, in effect, conferred the probate court's jurisdiction over the property of an incompetent immediately upon the filing of a petition, it gave further force to the jurisdiction originally acquired under § 525.81. Section 525.543 provides:

"After the filing of the petition, a certified copy thereof may be filed for record in the office of the register of deeds of any county in which any real estate owned by the ward is situated and if a resident of this state, in the county of his residence. If a guardian be appointed on such petition, all contracts except for necessaries, and all transfers of real or personal property made by the ward after such filing and before the termination of the guardianship shall be void." (Italics supplied.)

This section superseded Mason St. 1927, § 8927, which had provided for such filing with the register of deeds after service of the statutory notice. The purpose of this change was indicated by Judge Albin S. Pearson, one of the sponsors of the revised code, in 20 Minn. L.Rev. 336, as follows:

"Section 132 changes G. S. 8927 so that a certified copy of the petition only need be filed in the office of the register of deeds, rather than the petition, notice, and proof of service; and such, filing may be made before service of theorder. Usually when there is any occasion for givingconstructive notice, time is an important element; if desired, the result should be as readily obtained as in civil actions." (Italics supplied.)

7. Obviously, it was the intent of the legislature to protect the property of an incompetent from and after the filing of the petition in the office of register of deeds. It recognized that the probate court acquired jurisdiction over the same when the proceedings were initiated in such court by the filing of the petition therein. It expressly provided for continuing protection thereafter, regardless of when personal service was made upon the incompetent. Even though such subsequent service was long delayed, or ineffective, or procured only after several abortive attempts or returns, the original protective jurisdiction over the property continued and remained in full force and effect, under such statutory provisions, until the proceedings were dismissed or otherwise terminated.

By upholding here a collateral attack on the jurisdiction thus acquired, in substance the majority opinion nullifies the protective effect of §§ 525.81 and 525.543, notwithstanding the validity and constitutionality thereof and the clear and explicit directions therein. If the validity thereof be conceded, it must follow that the transaction attacked in these proceedings, occurring as it did subsequent to the filing of the petition in the register's office, was null and void under § 525.543. If it was null and void thereunder, it follows further that the answer stated no valid defense and was properly stricken.