This appeal is from an order and final judgment of the district court dismissing appellant's action, after a general demurrer to the complaint was sustained. Appellant, *Page 214 plaintiff in the court below, is the mother of Lewis V. Larsen, deceased, and respondent, defendant in the lower court, is the widow of said deceased. The sole question for determination is whether or not the complaint states a cause of action.
The complaint alleges the entering into of an agreement between plaintiff and defendant containing the following stipulations: That Lewis V. Larsen died intestate, leaving surviving him as heirs his widow and mother; that at the time of his death the deceased was possessed of certain real and personal property, a portion of which was community property of the deceased and his widow, and that the parties to the agreement, "for the purpose of avoiding litigation have stipulated and agreed between themselves" that certain described real estate constituted the separate property of the deceased and should be divided equally between them at the time of the distribution of the estate.
It is further alleged in the complaint that on December 4, 1923, defendant filed a petition in the probate court in the matter of the estate of Lewis V. Larsen, deceased, asking that all of said real estate be distributed to her as community property; that thereafter plaintiff filed written objections to defendant's petition, setting out as grounds for objection that, the agreement of the parties was that the property involved was separate property of the deceased and should be equally divided between plaintiff and defendant; that defendant resisted said objections, repudiated the agreement, and renewed her request to have the property distributed as community property.
The complaint further alleges the issuing of a decree of distribution by the probate court wherein the property in dispute was declared to have been the community property of the deceased and defendant, and that the same was distributed to defendant; and that though demanded so to do, defendant has, in violation of her agreement and contrary to the provisions thereof, failed, neglected and refused to convey to plaintiff an undivided one-half interest, or any interest at all, in and to said real estate, and has completely *Page 215 repudiated said agreement and refuses to carry out the provisions thereof. The prayer is for specific performance of the agreement, requiring defendant to make a conveyance to plaintiff of an undivided one-half interest in and to the real estate described, and for an accounting of the income, profits and expenses thereof.
From a reading of the agreement, which we do not think ambiguous or uncertain, and which is made the foundation of appellant's action, it appears that at the time it was entered into, appellant and respondent labored under the belief that the property in controversy was the separate property of the deceased. Whether the property was separate property or community property was one of the questions to be determined by the probate court and by the parties submitted to that court for its decision. That court had authority to determine the persons who by law were entitled to the property, and also the proportions or parts to which each was entitled; who were the heirs of the deceased and who were entitled to succeed to the estate and their respective shares and interests therein. (C. S., secs. 7730, 7925, 7930, 7931; Miller v. Mitcham, 21 Idaho 741, 745, 123 P. 941.) The probate court found that the real estate in question was community property and so decreed it, from which decree no appeal was taken.
An examination of the agreement between the parties herein does not disclose that the surviving widow of the deceased conveyed thereby, or agreed to convey, to appellant, one-half of the real estate of which the deceased died seised, or any interest therein. It cannot be said, therefore, that the agreement was one of conveyance, or an agreement to convey.
Both of the parties appeared before the probate court, respondent there insisting that the property was the community property of herself and deceased husband, and appellant contending that it was the separate property of the deceased. Had the property been found by the probate court to have been the separate property of the deceased, appellant would have taken a proportionate part thereof as *Page 216 an heir (C. S., sec. 7793, subd. 2); while, upon the other hand, if the property was found to belong to the community, the surviving spouse would be entitled to all of it. (C. S., sec. 7803.)
The question of the character of the property was submitted to the probate court for its decision. Since the only question presented to the probate court was the determination of the character of the property, and that court having found adversely to appellant in that it decreed the real estate to be community property and distributed the same to respondent, from which decree no appeal was taken, it is our opinion that the decree of the probate court cannot be collaterally attacked by an independent action. (Connolly v. Probate Court, 25 Idaho 35,136 P. 205.) Giving to the agreement of the parties the weight or effect of a stipulation, its observance or enforcement was a matter for the probate court, and if that court's refusal to enforce the agreement was error, it could have been corrected on appeal. (Grady v. Porter, 53 Cal. 680.) By appearing in the probate court appellant became bound by the decision rendered therein, which, in the absence of fraud or mistake, or subject to be reversed, set aside, or modified on appeal, became final and conclusive. (William Hill Co. v.Lawler, 116 Cal. 359, 48 P. 323; Benning v. Superior Court,34 Cal. App. 296, 167 P. 291; Bacon v. Bacon, 150 Cal. 477,89 P. 317; Miller v. Mitcham, supra.) Probate courts have exclusive original jurisdiction over the estate of deceased persons, subject to appeal, and orders made in the exercise of their jurisdiction cannot be impeached upon collateral attack. (Const., art. V, sec. 21; Maloney v. Zipf, 41 Idaho 30, 33,237 P. 632; Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358.)
We have reached the conclusion that the complaint fails to state a cause of action and that the lower court did not err in sustaining the demurrer. Affirmed. Costs to respondent.
Wm. E. Lee, C.J., and Givens, Taylor and T. Bailey Lee, JJ., concur.
Petition for rehearing denied. *Page 217