
    122 F. 609
    ESTERLY v. RUA.
    No. 907.
    Circuit Court of Appeals, Ninth Circuit.
    May 14, 1903.
    
      T. J. Donohoe, T. R. Lyons, E. S. Pillsbury, Pillsbury, Madison & Sutro, and Alfred Sutro, for appellant.
    W. E. Crews and Lorenzo S. B. Sawyer, for appellee.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

On the presentation of the appeal before this court, it is contended that the judgment should be reversed for the following reasons: (1) The claim presented to the administrator was not properly verified; (2) the heirs of the decedent were not made parties; (3) the claim presented to the District Court was different from that presented to the administrator; (4) the court had no jurisdiction of the subject-matter; (5) the court erred in denying the appellant a jury trial.

The first three grounds on which the judgment is now attacked are not included in the assignments of error. The assignments of error, it is true, charge that the court erred in overruling the motion of the administrator to strike out the petition, in overruling his demurrer thereto, in overruling his motion for a judgment on the pleadings, and in overruling his written objections to the introduction of any testimony; but that is all that is said in the assignments concerning those motions and the demurrer. There is no specification of the grounds of the motions or of the demurrer, and those grounds cannot be ascertained without searching the record. This the court will not do where the objections are, as they are in this case, purely technical, such as that the claim before the administrator was not duly verified, or that it differed from the claim presented to the court, or that the heirs have not been made parties to the proceeding. Grape Creek Coal Co. v. Farmers’ Loan & Trust Co., 12 C.C.A. 350, 63 F. 891; Atchison, T. & S. F. R. Co. v. Mulligan, 14 C.C.A. 547, 67 F. 569.

It is contended that the court had no jurisdiction of said estate for the purpose of hearing or determining the claim, for the reason that the alleged partnership between the appellee and the decedent had never been settled, and could only be settled by a suit in equity. It is true that in the most of the states the jurisdiction of probate courts over the estates of decedents does not divest courts of equity of jurisdiction over suits to settle partnership affairs, and that, ordinarily probate courts have no such jurisdiction. But there are states in which the reverse is true. Alaska Code, tit. 2, § 823, after enacting that if the executor or administrator shall refuse to allow a claim or a demand against the deceased it may be presented to the District Court or the judge thereof for allowance, thus provides: “The District Court, or the judge thereof, shall have power to hear and determine in a summary manner all demands against any estate agreeable to the provisions of this chapter, and which have been so rejected by the executor or administrator; and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment from which an appeal may be taken as in ordinary cases.” Act June 6, 1900, c. 786 (31 Stat. 462).

Section 790 provides: “The executor or administrator of a deceased person who was a member of a copartnership, shall include in the inventory of such person’s estate in a separate schedule the whole property of such partnership.” Act June 6, 1900, c. 786 (31 Stat. 457).

Section 791 provides: “After the inventory is taken the partnership property shall be in the custody and control of the executor or administrator for the purpose of administration, unless the surviving partner shall, within five days from the filing of the inventory, or such further time as the commissioner may allow, apply for the administration thereof, and give the undertaking therefor hereinafter prescribed.” Act June 6, 1900, c. 786 (31 Stat. 457).

Section 792 provides that if the surviving partner become such administrator he shall be denominated an administrator of the partnership, “and his powers and duties extend to the settlement of the partnership business generally.” Section 794 provides: “In case the surviving partner is not appointed administrator of the partnership, the administration thereof devolves upon the executor or general administrator.” Act June 6, 1900, c. 786 (31 Stat. 458). Section 795, “Respecting the Administration of Estates,” provides: “The mode of proceeding is in the nature of a suit in equity as distinct from an action at law.” Act June 6, 1900, c. 786 (31 Stat. 458).

The language of section 823, above quoted, is identical with that of section 1134 of the Code of Civil Procedure of Oregon, the laws of which state had been extended over Alaska, and were in force in that territory up to the time of the adoption of the Code of Alaska. In Pomeroy’s Equity Jurisprudence, § 1154, Oregon is placed in the rank of the few states in which “the jurisdiction of the probate courts over everything pertaining to the regular administration and settlement of decedent’s estates is virtually exclusive.” In a note to the same section (page 115) it is said that in Oregon “the absence of decisions upon the general question indicates that the statutory system of probate jurisdiction is exclusive, and that there is practically no equitable jurisdiction.” In Winkle v. Winkle, 8 Or. 193, it was held that, where there was an antenuptial agreement made by the deceased, the rights of the parties claiming under it cannot be determined in equity, but should be presented'and proved in the regular course of the administration pending in the probate court, and determined by that court in the final settlement. The court said that the statute had conferred on the probate court “exclusive jurisdiction in all matters pertaining to the transfer of the title to personal property of deceased persons. A court of equity has no jurisdiction over it.”

Missouri and Maine are states in which, as in Oregon, the jurisdiction of probate courts over claims against estates is practically exclusive. In Ensworth v. Curd, Adm’r, 68 Mo. 382, a suit in equity had been instituted in the circuit court by a petition which alleged that Jhe plaintiff and the administrator’s intestate were, in the lifetime of the latter, engaged as partners in the purchase and sale of real estate, and the plaintiff prayed for an adjustment of their accounts, and that certain real property to which the intestate had taken a deed in his own name, and of which he died seised, be declared partnership property, and subjected to the payment of any balance found due the plaintiff on the final settlement of their accounts. It was held that while a court possessed of general equity powers is undoubtedly the proper tribunal in which to settle copartnership affairs between the living, settlement of a copartnership that had been dissolved by the death of one of the partners must be had in the probate court, and the plaintiff was relegated to that court. See Pearce v. Calhoun, 59 Mo. 271; Ross v. Carson, 32 Mo.App. 148; State ex rel. Richardson v. Withrow et al., 141 Mo. 85, 41 S.W. 980; Cook v. Lewis, 36 Me. 340. These considerations and the foregoing authorities fully dispose of the objection to the jurisdiction of the District Court as a court of probate over the appellee’s claim. But if, indeed, the appellee were, under the Code of Alaska, required to resort to a court of equity to establish the fact of the copartnership and his claim against it, the proceedings which were had in the District Court would fully answer the requirements of such a suit. The petition of the appellee contained all the necessary averments of a bill in equity. The court had jurisdiction of such a suit. The appellant answered, and the issues raised on the petition and the answer were tried by the court on the evidence which was adduced. The order and judgment of the court thereon may be regarded as a decree establishing the right and the claim of the appellee.

It is contended that the appellant was entitled to a jury trial for the reason that section 1134 of the Oregon Civil Code, from which section 823 of the Code of Alaska was taken, had been so construed by the decisions of the Supreme Court of Oregon as to authorize a trial by jury. That court, in construing the provisions of section 1134, held that, on an appeal to the circuit court from a judgment of a probate court allowing or rejecting a claim, the case should be tried in the circuit court before a jury. In so ruling it gave force to that portion of the section which declares that the order of allowance made by the probate court shall have the force and effect of a judgment, and the court held that since the case came to the circuit court on appeal from a “judgment” it was to be there dealt with as any other judgment which might be reviewed by that court on appeal. But it never was held in Oregon that on a hearing before the probate court to establish a claim after it had been rejected by the administrator a jury trial could be had. The probate jurisdiction as to such a claim, which in Oregon is given to a probate court, is by the Alaska Code given to the District Court or the judge thereof. That court, or the judge thereof, occupies the same relation thereto that the probate court does under the Oregon Code, and, even if this question were not ruled by the decisions of the Oregon courts adversely to the appellant’s contention, the very language of the grant of jurisdiction to the “District Court, or the judge thereof,” must be held to indicate that it was not the intention to secure to the-contestants of such a claim the right of trial by jury. The appellant invokes the provisions of the seventh amendment of the Constitution, which provides that “in suits at common law where the valúe in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” But the present controversy is not a suit at common law. In Ferris v. Higley, 20 Wall. 375, 22 L.Ed. 383, the Supreme Court denied the power of a territorial legislature to confer upon the probate courts which had been created under the organic act jurisdiction over common-law cases. Of the functions of probate courts the court said: “Such courts are not in their mode of proceeding governed by the rules of the common law. They are without juries, and have no special system of pleading.” The Code of Alaska, in section 795, under title 2 of general provisions respecting the administration of estates, provides: “The mode of proceeding is in the nature of a suit in equity as distinguished from an action at law.” Section 371 of chapter 15 of the same title provides that, except as in that chapter otherwise or specially provided, “both issues of law and fact shall be tried by the court unless referred.” Act June 6, 1900, c. 786 (31 Stat. 395).

We find no error for which the judgment of the District Court should be reversed. It is accordingly affirmed.  