Dissenting. — The property involved in this action was the separate property of Marietta Glover at the time of her death. From the stipulation of facts filed in this case we must assume that the probate court acquired jurisdiction of her estate. Under Rev. Statutes, sec. 5702, subd. 1, her surviving husband, George S. Glover, and her minor son, George R. Glover, plaintiff below, were entitled to succeed to this property in equal shares. Such proceedings were had in the administration of her estate in the probate court that a decree of distribution was entered, reciting that the property was community property and distributing the whole thereof to the surviving husband, George S. Glover. No appeal was taken from this decree of distribution.
It is true that it is not the office of a decree of distribution by the probate court to create titles, or to transfer rights. (In re Newlove’s Estate, 142 Cal. 377, 75 Pac. 1083; Bates v. Howard, 105 Cal. 173, 38 Pac. 715; Gossage v. Crown Point M. Co., 14 Nev. 153; Chever v. Ching Hong Poy, 82 Cal. 68, 22 Pac. 1081.) But it is the office of a decree of distribution to determine who the heirs are to whom the estate has descended, in the absence of a testamentary disposition thereof, and apportion the parts to which each heir is entitled. In Idaho a decree of distribution applies to personal property and real estate alike. (See Toland v. Earl, 129 Cal. 148, 79 Am. St. 100, 61 Pac. 914.)
Involved in every decree of distribution in the matter of any estate of which the probate court has jurisdiction, and which has not been disposed of by will, is the determination of the question as to who are the heirs of the intestate, and the further question of the parts or proportions of the estate to which each heir is entitled. (Miller v. Mitcham, 21 Ida. 741, 123 Pac. 141; Connolly v. Probate Court, 25 Ida. 35, 136 Pac. 205; Crew v. Pratt, 119 Cal. 139, 51 Pac. 38; Cunha v. Hughes, 122 Cal. 111, 68 Am. St. 27, 54 Pac. 535; St. Mary’s *445Hospital v. Perry, 152 Cal. 338, 92 Pac. 864; In re Burdick’s Estate, 112 Cal. 387, 44 Pac. 734.)
If the property in fact had been, community property, under Rev. Statutes in force at the time this administration was had, the probate court would have had no jurisdiction of the estate. (In re Rowland’s Estate, 74 Cal. 523, 5 Am. St. 464, 16 Pac. 315; In re Young’s Estate, 123 Cal. 337, 55 Pac. 1011; In re Klumpke’s Estate, 167 Cal. 415, 139 Pac. 1062.)
The claim advanced by the husband that the property was community property and belonged to him, not as heir but as owner, is a claim adverse to the estate and presents a question of which the probate court had no jurisdiction. (In re Klumpke’s Estate, supra; In re Rowland’s Estate, supra.) The probate court, under our statute, is not required to make and file findings of fact as a basis for its decree of distribution. If the probate court in this case was attempting to pass upon the adverse claim of the surviving husband that the property was community property and therefore belonged to him as owner without administration, its action in so finding was beyond its jurisdiction and void.
I think the mere fact that the court found, by way of recital, that the property involved in this action was community property would not have the effect of divesting the court of jurisdiction of the estate. Notwithstanding such finding, it was the court’s duty to proceed and make a decree of distribution, a duty which, in case of refusal, it might haye been compelled to perform by writ of mandate. It did not dismiss the probate proceedings, but did make and enter its decree of distribution.
That the court was intending to decree a distribution of the estate of Marietta Glover, deceased, and was not setting over the estate to George S. Glover, the - surviving husband, because as community property it belonged to him without administration, I think is patent on the face of the decree itself. The decree contains the following:
‘ ‘ George S. Glover, the administrator of the estate of Marietta Glover, deceased, having on the 21st day of January, *4461907, filed in the court his petition, setting forth, among other matters, that all accounts have been finally settled . , and that a portion of said estate remains to be divided among the heirs of said deceased; .... said matter coming on regularly to be heard this 1st day of February, 1907, .... and it appearing to the satisfaction of this court that the residue of said estate, consisting of the property hereinafter particularly described, is now ready for distribution . . . . ; that the said estate is community property; that the said Marietta Glover died intestate in the County of Los Angeles, State of California, on June 16, 1907, [1905] and his [her] only heirs at law are George S. Glover, husband, and Baymond Glover, son..... That the said George S. Glover, as the husband of the said Marietta Glover, is entitled to all the residue of said estate.....
“It is hereby ordered, adjudged and decreed that the residue of said estate of Marietta Glover, deceased, hereinafter particularly described, and now remaining in the hands of said administrator, and any other property not now known or discovered, which may belong to said .estate, or in which the said estate may have an interest be and the same is hereby distributed as follows, to-wit: [to] George S. Glover.....” (Then follows a particular description of the property involved in this action.)
Failure to mention an heir, or distribution to one not an heir, or erroneously determining the proportions or parts of the estate to which the heirs are entitled, does not render the decree void. (Sohler v. Sohler, 135 Cal. 323, 87 Am. St. 98, 67 Pac. 282; Mulcahey v. Dow, 131 Cal. 73, 63 Pac. 158.) To so hold would be to deny power in the court to commit error. To hold a decree of distribution, awarding to one heir that portion of an estate which by the statute of succession belongs to another heir, void pro tanto because in excess of the jurisdiction of the probate court, would result in unsettling the probate titles of the state. It would lead to the evil which the law was designed to remedy. I think, therefore, that the decree of distribution in this case was erroneous, but not void.
*447No appeal having been taken, it became final and conclusive. (C. L., sec. 5627; Miller v. Mitcham, supra; Connolly v. Probate Court, supra; Wm. Hill Co. v. Lawler, 116 Cal. 359, 48 Pac. 323; Crew v. Pratt, supra; Goad v. Montgomery, 119 Cal. 552, 63 Am. St. 145, 51 Pac. 681; In re Trescony, 119 Cal. 568, 51 Pac. 951; Cuhna v. Hughes, supra; Jewell v. Pierce, 120 Cal. 79, 52 Pac. 132; In re Miner’s Estate, 143 Cal. 194, 76 Pac. 968; St. Mary’s Hospital v. Perry, supra; In re Kennedy’s Estate, 129 Cal. 384, 62 Pac. 64; In re Burdick’s Estate, supra; Chever v. Ching Hong Poy, supra.)
The decree of distribution, being a proceeding in rem, was binding upon the minor heir. (Mulcahey v. Dow, supra; Connolly v. Probate Court, supra.)
Decrees of probate courts in probate matters, however, are subject to attack in equity to the same extent as decrees or judgments of other courts in other actions. (Bacon v. Bacon, 150 Cal. 477, 89 Pac. 317.)
The second cause of action in the complaint alleges fraud in the procurement of the decree of distribution, and the complaint contains a prayer for general relief.
Respondent in this case should have been granted any relief to which he was entitled under the allegations of his complaint, and the proof produced at the trial. (Dormitzer v. German Savings & Loan Soc., 23 Wash. 132, 62 Pac. 862.) His allegations and proof of fraud were sufficient within the rules laid down in the cases of Sohler v. Sohler, supra, and Diamond v. Connolly, 251 Fed. 234, 163 C. C. A. 390.
Under the constitution and statutes of this state, probate courts are granted exclusive original jurisdiction in the matter of the settlement of estates. (Connolly v. Probate Court, supra; Idaho Trust Co. v. Miller, 16 Ida. 308, 102 Pac. 360.) The district court, therefore, could not have set aside the decree of the probate court and substitute such a decree as would have been proper in its judgment; neither is it within the province of the district court, unless the matter reaches it on appeal, to direct the probate court as to what decree it shall make. (Toland v. Earl, supra.)
*448Doubtless, in proper cases where those interested in the estate can be made parties to the action, a decree of distribution may be set aside in equity for fraud. In such eases the estate reverts to the probate court to complete the administration. (In re McFarland’s Estate, 10 Mont. 586, 27 Pac. 389.) But in this case, the surviving husband died long prior to the institution of the action. Appellants, defendants below, had derived title through the father, George S. Glover. Respondent was not entitled to have the decree set aside so as to divest appellants of their title or cast a cloud thereon, if they were bona fide purchasers of the property. It may be conceded that at the time the guardian’s deed was given, the property was impressed with a constructive trust, that is, that George S. Glover held an undivided one-half of the property as trustee, for his minor son. (Diamond v. Connolly, supra; Sohler v. Sohler, supra; Estate of Hudson, 63 Cal. 454.) A guardian’s sale of real estate is a judicial sale, and the rule of caveat emptor applies. (Black v. Walton, 32 Ark. 321; Bachelor v. Korb, 58 Neb. 122, 76 Am. St. 70, 78 N. W. 485; Leuders v. Thomas, 35 Fla. 518, 48 Am. St. 255, 17 So. 633.) But a purchaser in good faith of trust property at a judicial sale thereof is not affected by the trust, and takes the property freed therefrom, unless he had notice of the trust at the time of the purchase. (17 Cyc. 1302; 39 Cyc. 562.)
Respondent alleged in his complaint that the appellants took their title with notice of his equities, and that they were not bona fide purchasers, which allegations appellants denied. In ,-their answer, they did not affirmatively allege that they were bona fide purchasers. The court found that the defendants, appellants here, purchased their title to the land described with notice of the rights and interests of respondent. Appellants do not specify as error in their brief that the evidence was insufficient to support this finding, although they argue that appellants were bona fide purchasers for value.
It is apparent from the record, however, that the question of the bona fides of appellants was considered in the trial of *449the ease below. Since the evidence consisted principally of a stipulation of facts, and no question of credibility of witnesses is involved, and this court has before it for consideration all that the trial court had on this feature, of the ease, I think we should consider the question of the bona fieles of appellants, even in the absence of a direct specification of error as to the insufficiency of the evidence, and even though the burden of alleging and proving that appellants were bona fide purchasers rested with them. (Ewald v. Hufton, 31 Ida. 373, 173 Pac. 247; Johansen v. Looney, 31 Ida. 754, 176 Pac. 778.)
There is nothing whatever in the record upon which the finding that the appellants took with notice can be based, except the fact that the deed of gift from the husband to the wife was duly recorded. But between the time of the recording of that deed and the guardian’s sale, the probate court had distributed the property to the surviving husband. A decree of distribution of the probate court is entitled to all the presumptions in its favor which are applicable to a decree of a court of general jurisdiction. In the absence of any proof of notice, extrinsic to that contained in the records in the office of the county recorder, it seems to me to be manifest that a purchaser would have a right to rely upon the subsequent decree.
I am of the opinion that the judgment should be reversed and the cause remanded to the district court for a new trial.