In re Decker's Estate

GUNNISON, District Judge. Respondents claim an estoppel, on the ground that a judgment of the probate, court is not subject to a collateral attack. This court has heretofore held, in the matter of Sylvester’s Adm’r v. Willson’s Adm’r, 2 Alaska, 325, that: [109] “The probate court of the district of Alaska is an inferior court and possesses only limited jurisdiction. This being the fact, its orders, judgments, and decrees carry no presumption of regularity, since that presumption arises only upon those of the superior courts and those having a general jurisdiction.” In other words, the jurisdiction of the probate court to hear and determine must first be established by showing the steps which gave to the court the authority over the matter under consideration. After the jurisdiction is established, the judgment, orders, and decrees can be attacked collaterally for fraud only. The authorities cited by counsel all support that proposition. In the case of McNitt v. Turner, 16 Wall. 366, 21 L. Ed. 341, the court says: “Jurisdiction is authority to hear and determine. It is an axiomatic proposition that when jurisdiction has attached, whatever errors may subsequently occur in its exercise, the proceedings, being corara judice, can be impeached collaterally only for fraud.” See, also, Grignon’s Gessee v. Astor, 2 How. 319, 11 L. Ed. 283; Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054. Thus where the jurisdiction in the court and its right or authority to hear and determine are once established, the presumption of verity attaches, but not until then. ■But, whether the judgments of the probate court act as an estoppel of record or not, the court is of the opinion that the affirmative defense was well pleaded by the respondents. In the case of Davis v. Wakelee, 156 U. S. 680, 689, 14 Sup. Ct. 555, 39 L. Ed. 578, the court said: “It may be laid down as a general proposition that where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not therefore assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” [110] For the purposes of the demurrer, the facts set up in the affirmative answer must be taken as true. Elizabeth Decker is the sole heir and only person to be benefited by the reopening of this matter in the probate court. She alone could profit by it. The allegations of the answer disclose certain acts upon her part that bring the matter within the rule just stated. These acts in themselves raise an estoppel in pais, and are properly set up in the affirmative answer. The demurrer was properly overruled in the probate court.