Loe v. Ovind

TEIGEN, Chief Justice. This is an appeal from a judgment entered in the District Court from a purported order allowing a petition for distribution in the matter of the estate of Oscar A. Brudevig, deceased, of the County Court of Traill County. It appears Oscar A. Brudevig died testate on March 24, 1960. He left a holographic Will dated January 1, 1956, which was admitted to probate in the County Court of Traill County on August 30, 1960. The estate is being administered by the coexecutors appointed in the Will. The coexecutors, after filing seven annual reports and accounts, one for each year of administration, filed a final report and account, and petition for distribution, in October 1967. Hearings were set and notices served. No objections or exceptions were filed or received in the County Court and, on November 21, 1967, the date set for hearing, the County Court entered separate orders allowing each of the seven annual reports and accounts and, also, an order allowing the final report and account. Contained in the County Court’s order entitled, “Order Allowing Final Report and Account”, is the following language: “ * * * a petition for distribution having been made at the time of filing such report [Final Report and Account] this court will enter a final decree of distribution upon the expiration of the time to appeal from this order.” Subsequent thereto, three of the legatees named in the Will took an appeal to the District Court. In the notice of appeal the appellants specified certain portions of the petition for distribution with which they were in disagreement. No objection was made to the allowance of the final report and account. The appellants objected to [576] the manner in which the coexecutors proposed to distribute portions of the estate. The appeal was tried in the District Court and it appears no argument was presented or objection made to the manner in which the coexecutors handled the affairs of the estate during their administration. The sole objection was made to the construction placed upon portions of the Will by the co-executors as it affects these appellants. The County Court did not allow the petition for distribution. It made no reference thereto whatever except to state that it would enter a final decree of distribution upon the expiration of the time to appeal from the order allowing the final report and account. On the state of the record it is clear that no appeal was taken from the order allowing the final report and account. It appears to be an attempt to appeal from the petition for distribution and the County Court’s statement that it will enter a final decree of distribution upon the expiration of the time for appeal from the order allowing the final report and account. The title of the instrument also indicates this to be the intent. It is entitled, “Notice of Appeal and Objection to Petition for Distribution.” Section 30-26-01, N.D.C.C., provides: “Any party to a proceeding in county court, * * * who deems himself aggrieved by * * * any order affecting a substantial right made by a county court, may appeal to the district court of the same county.” [Emphasis added.] We held in In re Johnson’s Guardianship (N.D.), 87 N.W.2d SO, that an order of the county court which grants a re-hearing but does not determine legal rights or affect the subject matter of the proceedings in which it is issued, is not appealable to the district court as affecting substantial rights. The county court has exclusive original jurisdiction over all probate and testamentary matters. Section 111 of the North Dakota Constitution; Northwestern Trust Co. v. Getz, 67 N.D. 15, 269 N.W. 53; In re Edinger’s Estate (N.D.), 136 N.W.2d 114; Manikowske v. Manikowske (N.D.), 136 N.W.2d 465. The county court determines by its final decree of distribution who is entitled to the estate and their portions. Section 30-21-10, N.D.C.C. Where a construction of the will is necessary to distribute the estate to the persons entitled thereto, it is clear that the county court is empowered and required to construe the will. Bronson v. Johnson, 76 N.D. 122, 33 N.W.2d 819; Schulz v. Saeman (N.D.), 150 N.W.2d 67. The County Court has made no decision in this respect in this case. The statute allowing an appeal from an order of the county court provides the order must affect a “substantial right” of the party appealing. Section 30-26-01, N.D.C.C. The order appealed from does not purport to award a distribution nor does it determine in advance how distribution will be made when the time for appeal from the order allowing the final report and account expires. It does not pass on the petition for distribution nor does it construe the Will. The order, with respect to the petition for distribution, is purely procedural. It does not affect the appealing appellants’ legal rights to any of the property of the estate available for distribution. Such an order is not appealable as affecting the substantial rights of these appellants. This case is not parallel with In re Edinger’s Estate, supra. In that case we held that an order which passed on a petition for distribution, made at the time the final report and account was filed, was ap-pealable. However, in that case, the petition was challenged in the county court and the county court, by the order appealed from, held that the residue of the estate would be distributed in accordance with the terms of the antenuptial agreement, which was an issue on the appeal. In the case at bar, the County Court has made no order with respect to distribution except to [577] state that a decree of distribution will be entered upon the expiration of the time for appeal from the order allowing the final report and account. The appellants, by their purported appeal, limited their attack upon the petition for distribution and, therefore, are not entitled to a determination of those questions, in the first instance, in the District Court. The County Court has exclusive original jurisdiction of the issues framed and, until it decides those issues by the entry of an order or decree, there can be no appeal to the District Court. The issue of jurisdiction of the subject matter was not raised by the parties in the District Court, nor on this appeal, nor was it raised by the District Court. However, if the District Court had no jurisdiction of the subject matter, jurisdiction is not conferred upon this court by appeal from the judgment of the District Court. Finn v. Walsh, 19 N.D. 61, 121 N.W. 766; Muhlhauser v. Becker, 74 N.D. 35, 20 N.W.2d 363; 4 Am.Jur.2d, Appeal and Error, Section 9. Courts are required to take notice of jurisdictional questions relating to subject matter whether raised by any of the parties or not. Trautman v. Keystone Development Corporation (N.D.), 156 N.W.2d 817; In re Lyons’ Estate, 79 N.D. 595, 58 N.W.2d 845; 20 Am.Jur.2d, Courts, Section 92; 5 Am.Jur.2d, Appeal and Error, Section 698. The general rule is that proceedings conducted or decisions made by a court are legally void where there is an absence of jurisdiction over the subject matter. Hermes v. Markham, 78 N.D. 268, 49 N.W.2d 238; In re Lyons’ Estate, supra; In re Ashbrook’s Estate (N.D.), 110 N.W. 2d 184; 20 Am.Jur.2d, Courts, Section 97. For the reasons set forth herein, we reverse the judgment of the District Court and direct it to dismiss the appeal from the County Court. STRUTZ and KNUDSON, JJ., concur.