Bailey v. Gates

Inasmuch as the names of the appellants were not included anywhere in the record of the proceedings and no reference whatsoever made to them by citation, notice or otherwise, and not being named as absent heirs and an attorney appointed by the court to *Page 433 represent them, there was no semblance of notice of any kind given to appellants such as is contemplated by law. The right of inheritance, it must be conceded, is a right in the nature of a property right, and such an immunity as falls within the protection of the Fourteenth Amendment of the Constitution of the United States and the provisions of the constitution of this state, guaranteeing to every citizen that no person shall be deprived of life, liberty or property without due process of law. It is said that every person holds his rights, immunities and property under this protection. As we understand, the substance of this right is that the proceeding must be in accordance with the procedure established in the jurisdiction, which must, in the very nature of things, afford a day in court, an opportunity to be heard and a hearing before judgment, which implies the right to notice thereof. Perhaps the best exposition of this subject is that contained in the Dartmouth College case, and which has generally been adopted by text-writers and judges. It will be seen that these principles were recognized as early as 1728. See Due Process of Law by Rodney L. Mott, pages 111-113. Attention is called to section 5899, Rev. Laws of Nevada, 1912. Among other things provided for, the petition shall state the names of the heirs, if known, and providing further that, upon the hearing, proof may supply the omission of the declaration of certain jurisdictional facts. It is apparent that the above section of the statute contemplated that notice be given of the proceedings to all heirs who were known, and also to any that might be unknown, by reference to residence, description, etc. Sections 5009 and 5030, Rev. Laws, provide how unknown heirs shall be described and how notice shall be given. It cannot be denied, unless the requirements of due process of law are nullified and held for naught, that notice in some form likely to give notice to the parties must be given, and that the same lies at the very foundation of any legal proceeding. *Page 434 For the reasons pointed out, we respectfully submit that it was error for the trial court to sustain defendant's demurrer, and likewise error to render judgment on said order in favor of defendants. Appellants' statement that no attorney was appointed by the court to represent them in the probate proceedings is erroneous, although the record of that appointment is not before this tribunal. In the Dartmouth College case, adverted to by appellants to sustain their argument, it appears that the question of notice was not before the court, and that no decision with respect thereto was made. It is contended in counsel's argument that section 5899, Rev. Laws, required that the petition should state the names of the heirs, "if known." It is not averred in the complaint that the appellants or their whereabouts were known to the respondent, the court of probate or any other person or persons, and it must be presumed that if such knowledge were a fact, averment to that effect would be found in the complaint herein. Mr. Cooley has defined a presumption to be that conclusion of law which "credits the ordinary, the probable, that which is likely to have happened, or occurred," and when applied to human conduct, assumes that all persons do what is right and proper, until the contrary be shown; and as pertaining to official acts and conduct of officers relating thereto, is heightened to a degree that only a strong accusation, supported by convincing proof to the contrary, will prevail. This applies with all its force, especially in the absence of any averment to the contrary, to the question of notice as mentioned in the complaint and appellants' brief. It will be noted that counsel does not charge that notice was not given, nor does he charge that the notice given did not comply in every respect with the provisions of our statute (sec. 5866, Rev. Laws) pertaining thereto. Since there is this special provision for summoning parties in probate proceedings, sections 5009 and 5030 of Rev. Laws, having *Page 435 reference to civil causes wherein plaintiffs and defendants are parties, are forceless. With reference to the omission of the appellants' names from the petition, we cite the following cases: Nicholson v. Leatham (Cal.), 153 P. 965; Knowles v. Kasiska (Ida.), 268 P. 3; Krohn v. Hirsch (Wash.), 142 P. 647; Murray v. Superior Court (Cal.),278 P. 1033. It is stated in the complaint that "no notice whatsoever was given plaintiffs, either actual, constructive or otherwise." This is a conclusion, and falls short of an averment that the clerk did not publish the notice, as enjoined upon him by sec. 5866, Rev. Laws. There is no averment of fraud on the part of anyone with reference to the giving of notice, or, for that matter, with the probate of the will. The fraud averred being that in procuring the will to be made. It must be presumed that that method provided by statute for probate courts acquiring jurisdiction of persons was followed and that all the duties relative thereto were performed, since there is no averment in the complaint to the contrary. Bancroft's Probate Practice, sec. 40. OPINION This is a proceeding to set aside an order admitting a will to probate. The complaint alleges that Alexander Pollock died in Washoe County, Nevada, on September 18, 1925, leaving as heirs at law certain brothers and sisters and the plaintiffs, who are children of William Pollock, a deceased brother; that Alexander Pollock left no wife, children, mother or father surviving him; that deceased left an estate of the approximate value of $80,000; that he left a purported will in which he bequeathed his entire estate to May Frances Gates; that in due time a petition for the admission of said will to probate was filed in the proper court, but that said petition did not state the names, ages and places *Page 436 of residence of these plaintiffs. The complaint further avers "that no notice whatsoever was given to plaintiffs, either actual, constructive or otherwise, of said hearing (meaning the hearing on the petition to probate said will) and that it was not until long after the admission of said will to probate that plaintiffs, who were at the time nonresidents of the State of Nevada, and residents of the State of Massachusetts, heard of said proceedings." The complaint also avers that at the time of making of said so-called will by the deceased he was of unsound mind and that the execution of the same was the result of undue influence. The complaint contains certain other allegations not necessary here to mention. To the said complaint a general demurrer was filed on the grounds that the same does not state sufficient facts to constitute a cause of action. This demurrer was sustained and, the plaintiffs electing not to amend, judgment was entered in favor of the defendants, from which an appeal was taken. Two points are urged as grounds for reversal: First, that the petition for the probate of the will of the deceased did not state the names, ages and residences of the plaintiffs; and, second, that the complaint herein alleges that no notice was given to plaintiffs of the hearing upon said petition, both being urged as jurisdictional defects in said probate proceedings. 1. Considering the last point first, it is clear that no valid order can be entered for the probate of a will without the giving of notice to the heirs. In Re Hegarty's Estate, 45 Nev. 145,199 P. 81. Section 5860, Rev. Laws, relative to the probate of wills, provides, inter alia, that any person named as executor or executrix in a will, who accepts the trust, may present to the district court a petition for the probating thereof, setting forth in such petition the facts necessary to give the court jurisdiction, and, when known, the names, ages and residence of the heirs and devisees of the deceased. Section 5866 provides that, when such petition is filed with the *Page 437 clerk of the court, such clerk shall publish notice in some newspaper if there is one printed in the county, if not, then by posting such notice in three public places in the county, stating in such notice the filing of such petition, the object, and designating a time for proving such will, which shall not be less than ten nor more than twenty days. 2. Is there sufficient allegation in the complaint of the failure to give notice? We have quoted the allegation of the complaint which is the basis of the contention that no notice was given. We think there is an utter failure to allege that no notice was given. The so-called allegation is a naked conclusion. As said in 14 Ency. Pl. Pr. at page 1071: "In averring notice, the usual rule prevails that facts, and not conclusions of law, should be pleaded. A general averment that the defendant had notice is not sufficient." The same reasoning applies to a general averment that a party was not given notice. In Klovdahl v. Town of Springfield (Ore.), 158 P. 668, wherein the court had under consideration the allegation that notice was not given as required by the town charter, citing many authorities to support its conclusion, it said: "Good pleading requires that, instead of saying that `notice was not given as required by the charter of said town,' the facts relating to that matter be averred, leaving the court to draw the legal conclusion of whether or not the requirements of the charter have been fulfilled." See, also, McDaniel v. Thomas, 162 Ga. 592, 133 S.E. 624; Stephenson v. Supreme Council, etc., 127 Fed. 379; Peo. v. Banks,272 Ill. 502, 112 N.E. 269; Rapelye v. Bailey (Conn.), 8 Am. Dec. 199; Lawson et al. v. Townes, 2 Ala. 373; Heitkemper v. Schmeer (Ore.), 275 P. 55. 3. As to the contention that the petition praying for the probate of the will did not state the names, ages and residence of the heirs and devisees of the deceased, we need only say that the statute requires *Page 438 this to be done when this information is known to the petitioner. So far as appears, the petition states the names, ages and residence of all known heirs. Other points are made not suggested by the record, which we think it unnecessary to consider. For the reasons given the judgment is affirmed.