
    WELSH et al., Respondents, v. KRAUSE, Judge of County Court, Appellant.
    (161 N. W. 189.)
    (File No. 3960.
    Opinion filed February 3, 1917.
    Rehearing denied March 22, 1917.)
    1. Prohibition — Enjoining County Court Prom Exercising Probate Jurisdiction — Prior Suit in Circuit Court to Quiet Title, As Bar to Probate — Statute.
    Where, after decedent’s death, hut before comencement of prohate proceedings, certain heirs brought suit in circuit court, under Laws 1905, Chap. 81, to quiet title, to realty constituting [part of decedent’s estate, held, that where, after the subsequent commencement- of probate by petition of one of the heirs, of tlhie alleged will of decedent, the circuit court, in issuing a peremptory writ of prohibition upon application of certain other heirs, enjoining the county judge from exercise of further jurisdiction over"the estate, was in error; that, while Sec. 4 of said ■Chap., providing that the circuit court shall have jurisdiction in such action to quiet title, to determine who' are heirs at law, devisees and legatees of a decedent wihio in his lifetime had any interest under, etc., in the realty, and to adjudicate upon the rights of heirs, etc., which adjudication shall be binding and valid upon the parties, etc., and that said court shall have jurisdiction “over the estate of any such deceased person, to make final settlement thereof, so far as may be necessary to a complete determination of the title to the premises involved,” etc., which language evidences the legislative intent to confer upon said court full power to administer estates of deceased persons to the extent that sudbi administration becomes necessary in a pending action for determination of conflicting claims to realty, which determination shall he final and com-iplete; and while, under Act of Cong, of March 2, 1861, Sec. 9, under which Dakota Territory was organized, it was provided that the -Supreme and district courts shall possess chancery as well as common-law jurisdiction, and under Const., Art. 5, Sec. 14, tibe circuit courts are given original jurisdiction over all actions and causes both at law and in equity, which constitutional provision includes all equity powers that come within the scope of the term as it was understood at the time, and by these various provisions thei circuit courts, in exercise of equity powers, are vested with the same jurisdiction over probate •proceedings that was possessed by the federal courts at that time, yet this jurisdiction is a limited jurisdiction, exercisable only in special Cases; and, the county courts being provided by law with all the means necessary for complete administration and distribution of estates of decedents, therefore courts of equity refuse to exercise general probate jurisdiction; and by reason of the constitutional provision (Art. 5, Sec. 20) conferring unlimited probate jurisdiction upon county courts, and because of the statutes enacted precedent thereto, it 'has become the settled policy of this state, that, except in special cases-, all such matters shall, in the first instance be adjudicated in the county courts. Therefore the county court should be permitted to proceed in the ordinary and regular manner to probate said will; no reason having been shown, such as fraud, waste, -and the like, or great lapse of time since decedent’s death, that would warrant interference of a court of equity; and said writ of prohibition should be vacated.
    2. Courts — Probate Jurisdiction, versus Circuit Court Jurisdiction — ■ Administration of Estates — Constitution, Statute, as Conflicting With.
    Under Laws 1905, Chap, 81, conferring jurisdiction upon circuit court in suits to quiet title to realty, to determine who are heirs at law, devisees and legatees of any deceased person who had in his lifetime any interest in, etc., the realty, and to adjudicate upon rights of such heirs, devisees and legatees, etc., and conferring jurisdiction “of the estate of any such deceased person, to make final settlement thereof, so far as may be necessary to a complete determination of the title to (the .premises involved,” etc., hold, that jurisdiction of the circuit court does not necessarily conflict with Const., Art. 5, Sec. 20, conferring upon county courts “original jurisdiction in all matters of probate;” that tibe constitutional provision, while hroad and comprehensive, does not purport to confer exclusive jurisdiction in all matters in probate on the county courts, nor does it divest any other court of any probate jurisdiction it may have acquired or possessed at the time of the adoption of the Constitution. Since earliest times in this country, and in England, courts of equity have exercised a limited jurisdiction in matters of probate; and said statute is not in conflict with said constitutional provision.
    
      Appeal from 'Circuit 'Court, Brookings County. Hon. Gael G. Sherwood, Judge.
    Petition of Elizabeth McDonald, and others, against W. A. Krause, Judge of County Court of Moody County, in the Circuit Court of Brookings County, for a writ of prohibition enjoining said judge from exercising further jurisdiction over the estate of’ Patrick Flemming, deceased. From a judgment and order so enjoining said county judge, the defendant appeals.
    Judgment and order reversed.
    
      Rice & Rice, for Appellant.
    ■' Hail, Alexander & Purdy, for Respondents.
    (i) To point one of the opinion, Appellant cited: State v. McDonald, 104 Pac. 967 (971); Territory v. Bramble, 2 S. D. 189 (199) ; Anderson v. Anderson, 112 N. Y. 104; Pom. Eq.. Jr. 1158, and note; Apperson v. Cottrell, (Ala.) 29 Am. Dec. 237 (242); Kieley v. McGlynn, 88 U. S. 503, 22 Daw Ed. 599: Townsend v. Townsend, 4 Ooldlwell, 70, 94 Am. Dec. 184; Daniel v. Pattison, (Cal.) 27 Pac. 651; Roberts v. Roberts, (Cal.) 142 Pac. 1080; Anderson v. Appleton, N. Y. Ct. of Appls. 2d D. R. A. 175; Burnham v. Norton, (Wis.) 75 N. W-. 304 (306) ; Rosenberg' v. Frank, 58 Cal. 387 (403) ; State v. Lancaster, 105 S. W. 858, 14 L. R. A. (N. S.) 991, and note; 8 Standard Cye. of Procedure, 412; Story Eq. (13 ed.) .p. 194, and note Wills excepted, id., p. 199.
    Respondents cited: Laws 1905, Chap. 81, Sec. 4; Berry v. Howard, (fí. D.) 146 N. W. 577.
    .(2) To point two of the opinion, Respondents cited: Robinson v. Fair, (U. S. Sup. Ct.) 32 L. Ed. 415; Bors v. Preston, in U. S. 252, 28 L. Ed. 4199 Crowell v. -Lambert, 10 Minn. 369 (Gil. 295); Const., Art. 5, Secs. 14, 20; Laws 1890, Ch. 78; Burks v. Walker, (Okla.) 109 Pac. 544; Pomeroy’s Eq. Jur., Vol. 3, p. 2249, et seq.; Mutual Fund Life Assn., 9 S. D. 596, 62 Am. St. Rep. 887, 70 Ni. W. 943; McClellan v. Garland, 217 U. S. 280, 54 L. Ed. 762; Little v. Birdwell, 21 Texas, 597, 73 Am. Dec. 242; Moulton v. Smith, 16 R. I. 126, Am. St. 728; State v. Issenlhuth, (S. D.) 148 N. W. 9; Sharpe v. Sharpe, 72 N. E. 1058; Bartlett v. Manor, (Ind.) 45 N. E. 1060; Glasscott v. Warner, 20 Wis. 686; Vine v. Jones, 15 S. D; 54, 82 N. W. 82.
   P-OLLEY, J.

This- is an appeal from a peremptory writ of prohibition, issued! ¡by the circuit court of Brookings counity, directed to the county judge of Moody county, enjoining the said county judge from exercising jurisdiction in the matter of the estate of a deceased person. The decedent, Patrick Eleming, died! in Moody county on or about the 25th day of May, 1915. He left surviving him as .'heirs at law, two daughters and the children of a deceased daughter, who are the plaintiffs in this action, and one son, Erancis Eleming. Prior to his death1 the said Patríele Fleming was seised in fee of several tracts of real property situated in Moody and Brookings counties; -and on the 28th day of July, 1915, the plaintiffs in this action commenced an action' in the circuit court of Brookings county for the purpose of quieting title in themselves to an undivided thfee-fOurfchs interest in and to said real property. The said action was 'Commenced' under the provisions of Chapter 81, Laws 1905, and! the said Erancis Eleming, the executors, administrators, heirs at law, devisees, legatees, • and creditors of Patrick Fleming, and all persons unknown who may have, or who may 'claim to have, any estate or interest in or lien or incumbrance upon the said reai •property of Patrick Eleming, deceased, are made defendants.

Oni the 20th day of August, 19x5, th'e defendant Francis Fleming appeared and answered the complaint of 'the plaintiffs in said action. In his answer said defendant claimed to be the owner in fee of the whole of said real property, and based his claim of ownership upon an alleged grant by deed from the said Patrick Fleming-, dated April 17, 1912, and also set up an allegéd last will and testament of the said Patrick Eleming, dated the 7th day of May, 1910, and in which he is named as residuary legatee. Defendant also by his answer called upon the said plaintiffs to set forth the source of their claim to said real -property, and) prayed that title thereto be quieted in him. To this answer -plaintiffs interposed a reply, in which they denied the making of the said will or the said conveyance -of the said real property, and alleged that said Patrick -Fleming died intestate and while seised' in fee of the -whole of -s-aid real property. _ On the following day, after serving his answer, said defendant Francis Fleming filed the said last will and testament, together with a petition for the probate thereof, in the -county court of Moody county. On 'the day set for hearing the said petition the ■plaintiffs 'herein appeared, in the said' county court and objected to the further exercise of jurisdiction over the said estate by the ■said .county court, and moved the dismissal of the petition for probate of said1 last will and testament of Patrick Fleming' upon the following ground1:

“That the circuit court within and for the county of Brook-ings, * * being a court of general jurisdiction, and having a concurrent jurisdiction in probate matters with- the county courts of this state, first acquired jurisdiction to determine who are the 'heirs at law, devisees, and legatees of the said Patrick Fleming, deceased1, and to make an adjudiciation upon the right of s-uc'h heirs, devisees, and legatees and of all creditors of said decedent, and to make final settlement of the estate of said decedent in an action in said circuit court (wherein the plaintiffs are the same as the plaintiffs in this action), and Francis Fleming and- the executors, administrators, heirs at law, devisees, legatees, and' creditors of Patrick Fleming, deceased, and all persons1 unknown who may have, or who claim to have, any estate' or interest in or lien or incumbrance' upon the real property hereinafter 'described, are defendants, which action was brought under and by virtue of the provisions of chapter 81 of the 'Session Laws of 1905 of the state of South Dakota, and involved all of the real estate and all property of the said! Patrick Fleming', 'deceased'.”

This motion was denied, and said county court proceeded with the administration of said estate. The plaintiffs then applied to the circuit court of Brookings county for a writ of prohibition, and, upon the foregoing facts, said circuit court issued a (peremptory writ of prohibition enjoining the judge' of- said county court from the exercise of further jurisdiction over the ■said estate.

Plaintiffs base -their claim in the premises on the provisions of chapter 81, Laws 1905, and a disposition of the case requires a determination of the meaning -of certain- portions of that chapter and the extent, if -at all, to- which it confers jurisdiction of the estates of deceased persons upon the circuit courts, of this state. In addition to ■ authorizing the 'commencement of an' action by any person having or claiming to have an interest in real property, -whether in or out of--possession thereof, -against any and all .persons, known or unknown, claiming adversely to such persons and providing the manner of acquiring jurisdiction of such adverse claimants, said chapter contains the 'following- provisions :

“Sec. 4. The court shall have jurisdiction in such action to determine who are the heirs at law, devisees and legatees of any deceased person who' 'had in ¡his 'lifetime any interest in or lien or incumbrance on the premises involved between themselves, as well as with respect tO' the rights of the plaintiff, and to make an adjudication upon the rights of such heirs, devisees and legatees and of all creditors of such deceased persons in and to such premises, which shall be valid and1 binding upon them and upon all the world, and if such heirs at law, devise'es and legatees of such deceased person and the creditors of such deceased person and the unknown defendants in said action, or any of them, shall fail to appear in such action and set forth and assert their interest in or claim to the premises involved, they shall he by the judgment and decree of the court forever barred and enjoined from thereafter claiming or asserting any title or interest in or lien or incumbrance upon or claim to the premises involved in the action. From the time of the publication of 'the summons, as hereinaf'ter directed, the circuit court shall have jurisdiction of the estate of any such deceased person, to make final settlement thereof, so far as may be necessary to a complete determination of the title to the premises involved, ’or of the 'interest or lien of any party or parties therein.”

This language is as broad in its scope as it could possibly be be made, and there can be no doubt that it was the legislative intent, when said law was enacted1, to confer upon the circuit court full power to administer estates of deceased persons to the extent that such administration becomes necessary in a pending action for the determination of conflicting, claims to real property; anel it is also clear, from, the languag-e used in the last sentence of the above section, that the determination of the circuit court is to be final and complete. But it is contended1 by the -appellant that, as so construed, said section conflicts with the provisions of section 20, art. 5, of the Constitution. This section,, so far as it applies to this case, reads as follows:

The “county courts * * * shall have .original jurisdiction in all matters of probate. * *

This language, while it is broad and' comprehensive, does not purport to confer exclusive original jurisdiction in all matters in probate on the county courts, nor does, it divest any other court of any probate jurisdiction it may have acquired or possessed at the time of the adoption of the constitution. Since the earliest times in this country, and! in England as well, courts of equity have exercised a limited jurisdiction in matters, in probate, and this jurisdiction is still retained by the federal courts. McClellan v. Carland, 187 Fed. 915, 110 C. C. A. 49; 1 Story’s Eq. Juris. § 532 et seq.; Attorney General v. Cornthwaite, 2 Cox, Ch. 44; Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Byers v. McAuley, 149 U. S. 608, 610, 620, 621, 13 Sup. Ct. 906, 37 L. Ed. 867; Waterman v. Canal-Louisiana Bank Co., 215 U. S. 33, 43, 30 Sup. Ct. 10, 54 L. Ed. 80; Green’s Adm’x v. Creighton, 23 How. 90, 93, 16 L. Ed. 419; Borer v. Chapman, 119 U. S. 587, 598, 599, 7 Sup. Ct. 342, 30 L. Ed. 532. In McClellan v. Carland, supra, the court say:

“When the owner of property dies, bis estate is immediately impressed with a trust for the benefit of his creditors, heirs, and legatees. The High Court of Chancery in England bad1 jurisdiction to enforce this trust. . The national courts 'in equity as a part of their original jurisdiction derived from that court have plenary power at the1 suit of any proper heir, legatee, or creditor to enforce this trust against any occupants, executors, administrators, or parties into whose control airy part of the trust estate has come.”

By section 9 of the act of Congress approved Mbrch 2, 1861, under which act Dakota Territory was organized (12 Stat. 239, c 86), it was provided that the Supreme 'and district courts should possess chancery as well as commondaw jurisdiction. The same provision i's found in the organic law of iSoutb Dakota, and by section 14, art. 5, of the Constitution it is provided that:

“The circuit courts shall have original jurisdiction of all actions and causes, bothl at law -and in equity.”

This provision of tíre Constitution included all the equity •powers that come within the scope of the term as' it was understood at that time; and by these various provisions the circuit courts of the state ,in the exercise of their equity powers, are vested with the same jurisdiction over probate proceedings that was possessed! by the federal courts' at that time. Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598. This, however, is a limited jurisdiction, andi one that will ibe exercised only in special cases: Waterman v. Louisiana B. & T. Co., 215 U. S. 33, 30 Sup. Ct. 10, 54 L. Ed. 80; Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867. The county courts are provided' toy law with all the means necessary for the complete administration and •distribution of the estates of decedents; and it is for this reason principally that courts of equity refuse to exercise general probate, jurisdiction. Kieley v. McGlynn, 21 Wall. 503, 22 L. Ed. 599. By reason of the constitutional provisions conferring unlimited probate jurisdiction upon the county courts, and 'because of the statutes enacted pursuant thereto', it has become the settled policy of the law of this state that, except in special cases, all such matters shall, in the first instance, toe adjudicated in the county courts; land this appears to toe the settled policy in nearly ail the states of the Union. 1 Pom. Eq. Juris. §§ 346-352. At section 349 this learned author, in discussing that matter, says:

“Unless ‘the case involves some special feature or exceptional circumstances of themselves warranting the interference of equity, such as fraud, waste, and the like, or unless it is of such an essential nature that a probate court is incompetent to' give adequate relief, or is one of which the probate court, having taken cognizance, has completely miscarried and failed to do justice by its decree, the courts of equity will refuse to' interpose and1 to exercise whatever dormant powers they may possess, 'but will leave the subject-matter and the parties to the jurisdiction of the statutory forum, which the Legislature plainly regarded as sufficient and intended to toe practically exclusive. According to this theory, the courts of equity cl!o not deny the existence of any jurisdiction over administrations; but they treat their own jurisdiction as auxiliary and supplementary, and 110't las concurrent, only to toe exercised in the exceptional cases where the probate jurisdiction is confessedly inadequate, or has actual!)'' shown itself insufficient.”

The same doctrine is approved by the following cases: Burnham v. Norton, 100 Wis. 8, 75 N. W. 304; Catlin v. Wheeler, 49 Wis. 507, 5 N. W. 935; Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Batchelder v. Batchelder, 20 Wis. 452; In re Klein, 95 Wis. 246, 70 N. W. 64.

No reason 'is shown or sugested in this case why the county court of Moody county should not be permitted to' proceed in the regular and ordinary manner to probate the will of Patrick Fleming, and no reason'has been shown, such ais fraud, waste, and the ■like, or great lapse of time since the death of the decedent, that would warrant the interference of a court of equity; and, in the absence of any such reason, the county court of Moody county should be permitted to' proceed with the probate of the will of the decedent.

The circuit court of 'Brookings county is- therefore directed to. vacate and! set aside the peremptory writ of prohibition issued herein, and in the further consideration of the action brought by plaintiffs 'herein to- quiet title to’ determine only such issues as pertain to the alleged transfer by deed.

The judgment and order appealed from are reversed.  