
    JACQUISH, Appellant, v. DEMING et al, Respondents.
    (167 N. W. 157.)
    (File No. 4231.
    Opinion filed March 26, 1918.)
    1. Courts — Circuit Court, Constitutional Jurisdiction of, Legislative Power to Deprive — Probate Jurisdiction — Statute.
    Assuming that allegation's of complaint bring the case within purview of Prob. Code, Sec. 16, providing that in counties having less than a certain population, county courts shall have exclusive original jurisdiction in prohate and settlement of estates of decedents, held, it is beyond the legislative power to deprive the circuit court of jurisdiction conferred by Const., Art. 5, Sec. 14, providing that circuit courts shall have original jurisditcion of all actions and causes at law and in equity; construing a complaint involving determination of relative rights of the parties, to unadministered realty and an accounting.
    2. Executors' and Administrators — Intestate Estates, Title to_ Decree of Distribution, Effect re Title
    Under Civ. Code, Sec. 1093, providing that the- property, real and personal, of one dying intestate, passes to his heirs, subject to control of county court and to possession of the administrator, etc., title thereto does not origin&t© from a decree of distribution of county court; such decree having no other effect than to release title of which heirs became vested, on death of ancestor, from conditions of administration to which it was subject, and to furnish heirs with legal evidence of such release.
    3. Same — Suit to Determine Heirship Eights, Accounting for Use and Profits — Complaint, Unadministered Estate, Status, Under Pleading.
    Under a demurred-to complaint setting up heirships to intestate decedent’s unadministered estate, and praying for an accounting by an heir who took possession and used the realty for a series of years, held, that the situation presented by the complaint is, in legal effect, the same as though said estate had been administered upon, debts paid and heirships adjudicated; the parties to >the action being' sole heirs of decendent.
    4. Same — IJnachninistered Estate of Intestate — Suit to Determine HeSrship Rights, Accounting — JurisdULction of Circuit Court, Versus Probate Jurisdiction — Relative Reliefs.
    In a suit the parties to which were sole heirs of an intestate, to determine relative rights and establish title to decedent’s estate, and for an accounting by -a defendant alleged to have taken possession, farmed, etc., the realty, the complaint alleging that decedent owed no debts, that no proceedings were had for probate of her estate, and that the rights of certain defendants were inferior to those of plaintiff, who was the owner by inheritance of an undivided share of the estate, and for sale of the lands and that profits be -brought into court, etc., held, that the complaint stated a cause of action within the equity powers of the circuit court, as against the claim that county court in probate had exclusive jurisdiction; , that probating the estate would not render rights of heirs more effective, nor afford the full and speedy relief demanded 'and which can. be administered in such suit; that the circumstances involved are so exceptional, that said court should assume and exercise jurisdiction, as a court of equity, said circumstances being of such an essential nature that a probate court is incompetent to give equally prompt and adequate relief.
    5. Pleadings — Intestancy—Death of Ancestor, Presumption From, of Intestancy, of Title in Heirs — Statute.
    In a suit to determine relative rights of heirs' to- an intestate’s unadministered estate, held, that, the death of the ancestor being alleged, it is presumed, in absence of allegation and .proof to the contrary, that he died intestate, and that title to his realty has passed to his heirs by descent; that the same presumption prevails as to personalty, under Civ. Code, Sec. 1093, providing that property of one dying intestate passes to his heirs, subject to control of county court and to possession of an administrator, etc.
    Appeal fotón Circuit Court, Sanborn County. Hon. Frank B. Smith, Judge.
    Action by Abstain Jacquish, against William M. Deming and others, to .determine relative nights to the tmadministéred estate of a decedent, for an .accounting, and fiar -other relief. From an order sustaining a ‘demurrer to the complaint, plaintiff appeals.
    Reversed.
    
      Null & Royktl, for Appellant.
    
      Baldwin & Lyons, for Respondent.
    
      (4) To point four of -the opinion, Appellant cited: Prob. Code, Sec. 147; Mears v. Smith, 19 S. D., p. 79; Welch v. Krause, (S. D.) 161 N. W. 189; O’Keefe -v. Behren's, 73 Kan. 469, 88 Pac. 55; 8 L. R. A. (N. S.) 354; Raws 1905, Ch. 81, Sec. 4; 14 Cyc. 142, 143, 157, 159, and cases cited.
    Respondents cited: I Pom. Eq. Juris. Section 349; Buchanan et al v. Buchanan (N. J.) 71 Ad*. 745; Wiare v. Galveston City Company, hi U. S. 170; PDaze-ltan v. Bogaiidlus (Wash.) 85 Pac. 602.
   SMITH, J.

Appeal from 'an order sustaining defendants’ demurrer to plaintiffs complaint. Briefly stated, the complaint alleges that the plaintiff and the defendants are the sole heirs at law oif one Rachael J. Deming, who died lab-out January 12, 1909, the owner of certain real estate in Sanborn county, and of certain money, cattle, horses, and personal property, of the value of about $1,500; that upon the death of Rachael J. Denting the defendant William M. Doming took possession df all of said personal -property and 'Converted the same toi his own use, except that he [applied -a portion thereof to- payment of the expenses of ■the last sicknieis's and funera.li 'expenses of Rachael J. Denting; that he has continuously lived upon, farmed, 'and -cropped -said land's, and appropriated the entire proceeds arising therefrom to bis own use; that the reasonable -viable of the us-e of said lands, from January 12, 1909, to the beginning of this suit, is the sum of $2,000; that at the time of her death Rachael J. Deming did not owe any debts, and that no proceedings were -ever had for ■the probate of her said estate; that the 'defendant William- M. D'eming has never accounted for or pa-id over to piainitiiff -any part of the -aforesaid money or personal -property, and- has never accounted for or -paid1 -over to her -any rents and profits arising® firclm said tends, or for the use thereof; that the defendants Paul-son, Rasely, and Johnson have or /claim some right, -title, or interest in and to /said lands, -but that said right, title, or interest is inferior to the title of this pl/aintiff, who is the owner, -by inheritance, of an undivided on-e-fifthi of said lanldfe and personal .property. Plaintiff prays that she -be awarded a decree establishing her rights as the owner of an- undivided- one-fifth of said lands; that the right, title, or interest of all defendants in -Said lands be determined, -and that tine right, title, -or interest o-f the defendants Plauilson, Rasely, and Johnson he .adjudged inferior to the title ¡olf this plaiiin'tiff; that said William M. Deming be required to account for the personal property above mentioned and for the use of 's'aid lands, amid .that tine lands be Sold and the proceeds thereof brought into court, and that the defendant William M. D'emling be required to account far the personal property 'hereinbefore mentioned and for the use of said lands; that the money and property referred to be distributed among the several parties to this suit according to their lights and in proportion to their interests itharein. Defendant demurs, 'em the ground that the facts stated ini the compilaint do not constitute a cause of 'action, tiiialt the court had nia jurisdiction, of the subject of the action, and tire .plaintiff b,as no legal capacity to use.

Appellant’s contention is that the circuit court is vested with equity powers equivalent to those possessed by the federal courts in the matter of the estates of deceased persons, conceding-, however, ithfat equity courts will refuse to exercise siuch jurisdiction, uiniless the oase involves' exceptional circumstances warranting tire interference of equity. Respondent appears to rely •Upon 'Section 16 :clf the Probate Code, which lis as follows:

“In all counties 'having a papulation of less than 10,000, the county court ishfaili have exclusive origina(1; jurisdiction in the matters of probate, and settlement of estates- of dteceased' -persons.”

Assuming that the allegations olf the complaint are sufficient to bring this case within the purview of that section-, it is- clearly beyond the legislative power to deprive the circuit court of jurisdiction conferred by the state Constitution. Section 14, art. 5, Constitution. Trotter v. Mutual Life Ass’n, 9 S. D. 596, 70 N. W. 843, 62 Am. St. Rep. 887; Welsh et al. v. Krause, 38 S. D. 264, 161 N. W. 189. It remains to be determined whether the facts alleged litn flue complaint present sucli exceptional circumstances as to warrant the interference of equity, or of such an essential nature that a probate court is incompetent to give equally prompt and adequate relief.

Section 1093, Civil Code, provides that -the property, both real a'nid personal', of one who, dies without disposing of it by will ¿p-assiesi to; the heir's of the intestate, subject to, the control of the county daunt and to the possession' of any administrator appointed by tihiait court for the purpose of administration. No title originates from a 'decree of distribution of the county court. Such 'decree has no 'cither effect than to release the title of which the heirs become vested, on the death of -the ancestor, from the conditions of 'adtaiiniisitration to which it was subject, an'dl to furnish the heir with legal! evidence of -such release. Carter v. Frahm, 31 S. D. 379, 141 N. W. 370.

The situation presented by the lallegaltions of the complaint 'and the demurrer is, in legal effect, the same as though the estate of the 'decedent had- been administered' upon, diebts paid in full, and heirship adjudicated; parties to the action being the sole heirs of the decedent. The ¡dieraur.rer admits that one of tile heirs has taken and is in possession of the entire assets of the estate, both real and personal, and has hlaid the use, rents, and profits thereof fclr a long period of time. The plaintiff demands an accounting therefor, and am adjudication of the rights ‘and interest of plaintiff -and all the -other heirs. The ■probating' of the estate would not render the -rights- of the heirs more effective, nor would it afford: the full and sipeedy relief demanded and* which can be administered! in’ fifis action. We are of the view that the case involves circumstances so exceptional that the court should assume and exercise jurisdiction.

Respondents also contend that the complaint is insufficient, in that it does not allege intestacy of decedent. The death of the ancestor being shown, it is presumed, in flue absence of allegation and ’proof to the contrary, that he died intestate, and t!h,at title to 'his real estate has passed to his heirs by descent. The same presumption would .prevail as to personal property umdler -our statute. Civil Code, § 1093, supra; Lyon v. Kain, 36 Ill. 362; Miitchell v. Thorne, 134 N. Y. 536, 32 N. E. 10, 30 Am. St. Rep. 699.

Tlhe order of the trial court is reversed.  