Weyant et al. v. Utah Savings & Trust Co., 54 Utah 181.

original jurisdiction to any extent.

Section 9 of the same

article of the Constitution also provides:

"Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estate, and in cases of guardianship, as shall be provided by law."

A reference to that section of the Constitution makes it manifest that, when it says that appeals shall lie from the final orders and decrees of the court, the district court, and no other court, is referred to. The district courts of this state are therefore invested with jurisdiction in probate matters precisely the same as they are invested with all other civil and criminal jurisdiction. They transact probate business as they do all other civil business. True, in administering estates they follow the established law and rules of procedure applicable to those matters, the same as they follow the established law and rules of procedure applicable to so-called equity or law cases. Moreover, our Constitution provides that "there shall be but one form of action, and law and equity may be administered in the same action." We therefore have no courts which are known as probate courts, or as law courts, or as equity courts; but we have courts possessed of general original jurisdiction, which are known as district courts. The district courts of this state, therefore, administer the estates of decedents as a part of their original jurisdiction, the same as they hear and enter judgments on promissory notes, or enter decrees in equity, foreclosing mortgages or quieting titles. The Constitution of this state, however, also, in article 1, section 11, in which is contained the Declaration of Rights, provides:

"All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay."

Counsel's theory respecting action and remedies is well illustrated in their reply brief, where they insist that respondents could have availed themselves of at least four civil remedies. Strange enough they also insist that the remedy pursued by respondents is not the proper one. Such a position, therefore, assumes that forms of action still exist and that

Appeal from Third District.

special relief may be granted in accordance with the particular form of the action. This is manifestly fallacious. The respondents had but one state of facts to present to the court, and it is upon those facts that relief, if any is granted, must be based. It is the facts that are alleged and established at the trial, when applied to the law, that determine the nature and extent of the relief that a court may grant, and not the ́ form of the action.

4

From a consideration of all the foregoing provisions and statements, it necessarily follows that in this state there is no such a thing as a particular form of action, nor a court in which particular forms of actions can be prosecuted or special remedies obtained. In this state, every person who has suffered injury to his person, to his property, or to his reputation may go into the district court, the court of original jurisdiction, and state the facts concerning his grievance, and if his statement of facts, when applied to the law entitles him to relief, the court is bound to grant him the relief to which the established facts, when applied to the law, whether legal or equitable, or both, entitled him. True, the plaintiff's rights and the relief ultimately granted, are based upon and measured by the established rules of law and procedure; but the court, in applying those rules, merely determines the nature and extent of the relief that shall be granted and enters judgment accordingly. When the respondents learned that they had been despoiled of their inheritance, and under the established rules of law and procedure they could obtain no redress by direct appeal from the decree of distribution in the probate proceeding, they were driven to seek redress in some other proceeding and by an attack upon the decree, provided they could establish the character of fraud which authorized such an attack, namely, extrinsic fraud. Under the authorities already referred to, such an attack, in this jurisdiction, is a direct attack. In our judgment the courts of this state-that is, the courts of original jurisdiction-were open to respondents for the purpose above stated, provided they properly alleged sufficient facts to invoke action by the court.

Weyant et al. v. Utah Savings & Trust Co., 54 Utah 181.

5

The facts they did allege in the proceedings to which reference has hereinbefore been made, and as outlined in the statement of facts herein, in our judgment, are ample to entitle them to the relief prayed for in this action. We are also of the opinion that, for the reasons already advanced, the district court of Salt Lake county, in the proceeding commenced by respondents in September, 1915, when they first learned of the fraud practiced upon them and on the court of Salt Lake county by the administratrix of the decedent's estate, was not limited to merely declaring her a trustee, and as such holding the property in trust for respondents. To thus limit respondents, in view of the facts established in this case, would amount to a denial of any substantial relief. True, as counsel for appellant contend, the facts developed in a particular case may nevertheless be such as to entitle the complaining party to limited relief only. The facts and circumstances might, doubtless, be such that an heir, though despoiled of his inheritance by the wrongful and fraudulent acts of the administrator, might nevertheless not be permitted to recover from the sureties on the administrator's bond.

In this case, however, the administratrix, so far as respondents are concerned, acted directly contrary to and in the very teeth of the duty imposed upon her by law and by the bond that is sued on. It was the duty of the administratrix, under the law, to publish proper notice, so as to apprise the heirs, and all others interested in the estate, of its true. condition; and when she failed to do that, but published notice in a false and fictitious name, known to her to be so, she utterly failed to "faithfully execute the duties of the trust according to law," as provided in the bond. Nor did she, as the bond provided, administer the estate "for the use of the heirs" of the deceased, as she was bound to do. Nor did the wrongs committed by her occur after the decree of distribution, nor when acting in a capacity other than that of administratrix. It is sometimes somewhat difficult to determine whether the wrongful acts complained of occurred at a time when the administrator is acting as such, or whether they oc

Appeal from Third District.

curred after he had ceased to so act and acted in a different capacity. Sometimes the administrator may act in a dual capacity, one as administrator and the other as trustee, etc. There may thus be circumstances, as is well stated in some of the cases, where an administrator may have defrauded an heir while acting as trustee, and after he had ceased to act as administrator.

In the probate proceeding here in question, however, the administratrix not only failed to publish proper notice, so far as respondents are concerned, but she utterly failed to make and return a true and complete inventory of the property belonging to the estate. Again, she converted to her own use about $12,000 worth of property of the estate without making an inventory thereof, and without disclosing its existence. That act alone constituted an insufferable fraud and manifestly constituted a breach of the bond. 18 Cyc. page 1267. Moreover, all of her acts which resulted in despoiling respondents of their inheritance occurred during the administration of the estate, and not after the decree of distribution had been entered, and when the administratrix was acting in a private capacity, or in a capacity of trustee, merely. True, she was awarded possession and control of the property which was inventoried, and which was left for distribution, by the decree of distribution; but that decree was directly based upon extrinsic fraud practiced by her, which fraud likewise constituted a breach of the bond in question here. In Ordinary v. Connolly, 75 N. J. Eq. 521, 72 Atl. 363, 138 Am. St. Rep. 577, the law respecting the liability of a surety on an administrator's bond is stated thus:

"The surety of an administrator is required to bear any injurious consequences arising from loss to the estate through the administrator's default or fraud, and has no right to any favor or immunity that would not be accorded to the administrator himself." Without pursuing the subject further, we are clearly of the opinion that the fraudulent and deceitful acts of the administratrix in this case were, each and all, committed while she acted in the capacity of administratrix, and thus constituted breaches of the bond sued on. Appellant, however, also insists that the district court erred

6

Weyant et al. v. Utah Savings & Trust Co., 54 Utah 181.

in admitting in evidence against it the judgment that was entered against the administratrix in the action against her. and to which appellant was not a party, and in which the amount and value of the property converted by her was ascertained and adjudicated. This contention, in our judgment, is clearly untenable. The great-the overwhelmingweight of authority is to the contrary. Among the many cases that hold directly contrary to appellant's contention are the following: Irwin v. Backus, 25 Cal. 214, 85 Am. Dec. 125; Stovall v. Banks, 10 Wall. (U. S.) 583, 19 L. Ed. 1036; Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714, 40 Pac. 229; Deobold v. Oppermann, 111 N. Y. 531, 19 N. E. 94, 2 L. R. A. 644, 7 Am. St. Rep. 760; Meyer v. Barth, 97 Wis. 352, 72 N. E. 748, 65 Am. St. Rep. 124; 2 Black, Judgments, section 589; Jones, Evidence (2d Ed.) section 591; Brandt, Suretyship, etc., section 712. In the annotator's note, Ann. Cas. 1915D, at page 402, it is said:

"The majority of the cases hold that from the nature of the obligation entered into by the sureties on an executor's or administrator's bond, making them privy to the proceedings against their principal, they are bound and concluded, in the absence of fraud or collusion, by a judgment against their principal, even though they were not parties to the proceeding."

In support of the foregoing text cases are cited from 22 jurisdictions. We remark that in Nebraska, from which state a case is cited in the foregoing note, it is held that, while the judgment against the principal is always admissible in evidence against the surety, yet it is only prima facie evidence against him. In a great majority of the jurisdictions, however, it is squarely held that, in the absence of fraud or collusion, the judgment against the principal is conclusive against the surety.

In the section cited from Jones on Evidence the author, in referring to administrators' bonds, says:

"In the opinion of the author the weight of authority sustains the view that in such cases the judgment is conclusive against the surety, on the principle that he has in effect contracted to be bound thereby."

In the note in 132 Am. St. Rep., commencing on page 764,