Respondents have filed a petition for rehearing wherein our opinion is criticised on the theory that it goes beyond the issues framed by the petition for specific performance of the contract, filed in the probate court by appellant, and the objections thereto, filed by respondents. This criticism disregards the scope of I. C. A., sec. 15-1004, quoted in the opinion. That section does not confine the probate court, the district court nor us, to the issues framed by the petition and objections thereto, but requires that a decree be entered authorizing and directing the executor or administrator to execute a conveyance if, after a full hearing on the petition and objections, and examination of the facts and circumstancesof the claim, the court is satisfied petitioner is entitled thereto.
In this case, while the petition declares on an executory contract, the evidence introduced shows a completed gift,inter vivos, which, as pointed out in the opinion, is an executed contract and is within the scope and meaning of I. C. A., sec. 15-1001. That evidence should have been accepted and acted on in the discharge of the duty of the court to make "examination of the facts and circumstances of the claim." It will not be necessary to amend the petition, should a further hearing be had in the district court, as authorized in the opinion, for the court is directed by sec. 15-1004 to go beyond the issues framed by the petition and the objections thereto and make an examination of all facts *Page 532 and circumstances which have legal bearing on petitioner's claim of right to the conveyance of the property in question, including evidence heretofore introduced and hereafter to be introduced, if any, with respect to that claim.
Respondents question the jurisdiction of the probate court to enforce a completed gift and cite Dewey v. Schreiber ImplementCo., 12 Idaho 280, 85 P. 921; Miller v. Mitcham, 21 Idaho 741,123 P. 141; Estate of Blackinton, 29 Idaho 310, 158 P. 492. They also urge that, if anything is left to be done, the gift is not completed and the promise to make it is unenforceable.
A gift, inter vivos, where equitable title has passed from the giver to the recipient, and where a deed of conveyance is only necessary in order to make the title merchantable, is within the jurisdiction of the probate court the same as is an executory contract whereby a deceased, in his lifetime, became obligated to convey real estate and died before making the conveyance.
Idaho Constitution, art. 5, sec. 21, provides:
"The probate courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, and appointment of guardians; . . . ."
Construing that section this court held, in Dewey v. SchreiberImplement Co., above cited, that probate courts were not thereby granted equity jurisdiction other than that which they might be called upon to exercise in matters of probate, settlement of estates of deceased persons, and appointment of guardians.
No doubt it was because of the limited jurisdiction, in equity, of the probate court, that the legislature has required it to dismiss the petition for specific performance if, upon hearing, the right to it is found to be doubtful. In this case, as the record now stands, appellant's right to a deed is not doubtful. It is true the district court found that "it does not appear to the court that Willard Fackrell ever intended the contract to take effect in his lifetime"; also "that Willard Fackrell, deceased, did not, by the contract in question, intend to convey the property in question *Page 533 to his sister, Mrs. Annie Fackrell Wilson, at the time of the delivery of the contract to her, . . . ." These findings are not supported by the evidence for it shows an intention on Fackrell's part to convey the equitable title and ownership, by the contract, of a two-thirds interest in the property in question to appellant.
We have directed that the parties be given an opportunity to offer additional evidence in the district court tending to show whether or not a gift of this interest in the property was made by Fackrell to his sister during his lifetime, not because the evidence in the record leaves any doubt that he did so, but in order that the parties may have an opportunity to offer any additional evidence they may have in view of the holding that a completed gift, inter vivos, is within the scope and meaning of I. C. A., sec. 15-1001.
Much has been said in this case to the effect that parties to an action are bound, in this court, by the theory on which the case was tried. We are committed to that rule, but it is subject to the limitation that it will be enforced only when injustice will not result therefrom. There are those who apparently believe it is the duty of a court to follow precedent, although injustice result in so doing. We do not subscribe to that theory.
The petition for rehearing is denied.