In re Frazee

Clayton, J. The only question arising from the foregoing statement of facts is: Did the United States court for the Northern district of the Indian Territory, sitting in probate, have jurisdiction to hear and determine the controversy between the two guardians, and make and enforce the order of February 17, 1900? The fact that the United States courts in the Indian Territory are vested with the powers, both at law and in equity, of circuit and district courts of the United States and the circuit court of Arkansas makes no difference, because in the trial of this case it was sitting as a probate court, exercising only its probate powers, which are identical with those of the probate court of Arkansas. J. M. Crutchfield, by his will, devised to his [594] wife, the appellant, and the two children, a one-third interest, each, to the premises. At his death, and before partition, they took the land as tenants in common. The appellant, Mrs. Crutchfield, took possession as a tenant in common with the other two, she being entitled to a one-third undivided interest; and she also took possession of a one-third interest by virtue of her guardianship of her daughter, "Vinita; but as to the other one-third interest— that of Taylor— she took possession only by virtue of the tenancy in common. As between her and Taylor there was no such fiduciary relationship existing as would give a court of probate jurisdiction to hear and determine the contentions between them, or between her and his guardian. The order of January 28rd was simply an order ■ requiring the appellant to file her report, showing the condition of the account between these guardians. That far the probate court had the right to go, because it had jurisdiction over both, and for the interest of each of the wards it was necessary that the account should be stated, and as between these guardians and their respective wards the court could make' such orders as justice might require; but as to any contested claims as between the two guardians arising out of the rents and profits of the tenancy in common the court had no jurisdiction. As to that the two guardians stood at arm’s length, and were strangers to each other. In this case the court had no jurisdiction by virtue of the powers usually conferred on probate courts in relation to the disposition of estates of deceased persons, . because the devisees named in the will had taken possession of the devised premises, and there was nothing left in relation to the estate of the deceased for the court to act upon. Its power in the case was, therefore, necessarily confined to its jurisdiction over these guardians as such. Of course the fact that one of the minors, Vinita, was the daughter, of appellant, and the other, Tailor, her stepson, could make no difference. They were none the less strangers to each [595] other, as far as this case is concerned, than if no relationship had existed. Nor does the fact that the two guardians are tenants in common with appellant of lands derived from the same devisee give to the court any other jurisdiction as to these parties than that which by statute it possesses over the estates of minors and their guardians. Considering these two guardians, then, as strangers in the suit, did the United States court, sitting in probate, have jurisdiction to hear and determine the controversy between them? The final order reads: “It is therefore considered, ordered, and adjudged by the court that the said report [the commissioner’s report] be filed; and it is further ordered that Josie Crutchfield, as guardian of Vinita Crutch-field, pay into the registry of this court, to be paid by the clerk herein to Morris Frazee, as guardian of Taylor Crutchfield, the sum of $237.62 within twenty days from the date of this order.” The probate court has only such jurisdiction as is conferred by statute and we fail to find any statute conferring on this court any such jurisdiction as to enable it to legally make and enforce such an order as between contesting parties strangers to each other. Woerner, in his American Law of Administration (2d Ed.) 151, says: “Since the functions of probate courts are limited, in respect of executors and administrators, to the control of the devolution oí property upon the death of its owner, it is not their province to adjudicate upon collateral questions. The right or title of decendent to property claimed by the executor or administrator against third persons, or by third persons against him, as well as claims of third persons against creditors, heirs, legatees, devisees, or distributees, must, if an adjudication become necessary, be tried in courts of general jurisdiction, unless such jurisdiction be expressly conferred on probate courts.” See also, section 412. And, of course the same rule applies as to guardians. Myrick vs Jacks, 33 Ark. 428; Moss vs Sandefur, 15 Ark. 381; Mobley vs [596] Andrews, 55 Ark. 222, 17 S. W. 805; Smith vs Gilmore, 13 Mo. App. 155; Hoehn vs Struttman, 71 Mo. App. 399. But it is contended that the appellant, Mrs. Crutchfield, having submitted to the jurisdiction of the court, is bound by the judgment. If it were conceded that the appearance and consent of the parties could give jurisdiction to the probate court of such a case as this, it would avail the appellee nothing, unless he could show that the appellant entered her appearance or consented to the proceedings; and this nowhere appears in the record. It is true that, in response to the order of January 23. 1899, she filed her report, stating the account between her and her ward; but this she was compelled to do, because the court had jurisdiction to order it. But, when done, it was a finality, as far as the power of the court to proceed further is concerned, as to all contested claims, except as between her and her ward. She was in court, not to defend against a suit over which the court bad no jurisdiclion, but to comply with its lawful orders, and when she did that the record shows no further appearance until she came in after the final order had been made, in her absence, to move the court to set it aside because made without jurisdiction. This -was neither consent nor appearance. "We therefore hold that the court below was without jurisdiction to enter the order of February 17, 1909. Reversed and remanded, with direction to the United States court for the Northern district of the Indian Territory at Vinita to make and enter such orders of record as will nullify the said order of February 17, 1900. Townsend, C. J. and Raymond, J., concur.-