Under the provisions of section 2, Chapter 91, Laws 1933, the Probate Court or the District Court having jurisdiction, may determine the ownership of a decedent's estate and "the interest of each respective claimant thereto or therein". *Page 411
I think this power is broad enough to enable the Probate Court to determine the question of whether the interest in an estate of one who is admitted to be the sole heir at law has been assigned, alienated, released or surrendered.
The District Court under the Act has the same statutory authority by virtue of the provisions of § 34-422 et seq., Comp. 1929.
Furthermore, when the District Court got jurisdiction of the administration of the estate, it had not only the jurisdiction to determine the ownership of the estate and "the interest of each respective claimant thereto or therein", but since by the provisions of § 34-422 et seq., Comp. 1929, jurisdiction over a new subject-matter was conferred on the District Court, a court of general jurisdiction, this new jurisdiction over the administration of estates so conferred is to be exercised by it as such a court, with the powers incident to its general jurisdiction so far as applicable to the new subject, and not as a tribunal of inferior jurisdiction. See Sheley v. Shafer,35 N.M. 358, 298 P. 942, followed in Re McMillan's Estate, 38 N.M. 347, 33 P.2d 369; Thelan v. Vogel, 86 Mont. 33, 281 P. 753; In re Baxter's Estate, 101 Mont. 504, 54 P.2d 869; In re Nielsen's Estate, 198 Wash. 124, 87 P.2d 298; In re Hoermann's Estate,108 Mont. 386, 91 P.2d 394; In re Krause's Estate, 173 Wash. 1,21 P.2d 268.
In 54 C.J. Removal of Causes, § 314, it is said: "The fact that, after the removal of a cause which was within the jurisdiction of the state court, defendant interposes a defense of which such state court could not have taken cognizance does not prevent the retention of the cause by the federal court."
In support of this text is cited Lehigh Valley R. Co. v. Rainey, C.C., 99 F. 596, which case is also cited in Foster on Federal Procedure and Moon on Removal of Causes. I have not found that the decision has been criticized.
In Brown's Estate v. Stair, 25 Colo. App. 140, 136 P. 1003, the court decided: "Where defendant, in an action to establish a claim against an estate, entered upon trial in the district court on appeal without objecting to that court's jurisdiction on the ground that the probate court did not have jurisdiction to try the issue involved, which was the existence of a constructive trust, the objection to the district court's jurisdiction was waived."
The court said: "If such cause of action upon a resulting trust had been disclosed by the evidence, we think appellant waived the question of jurisdiction of the district court to try it by failing to make the proper objections until after the cause had been tried upon its merits. The district court has original jurisdiction of the subject-matter of trusts and partnerships, and to try all the issues that are alleged by counsel for appellant to be involved. By the appeal, it acquired jurisdiction of the persons, and by entering upon the trial without objection predicated upon the jurisdiction *Page 412 of the probate court to try the issues that objection should be regarded as waived."
So, in the case at bar, the parties having tried the issues involved in the district court, without objecting to that court's jurisdiction on the ground that the probate court did not have jurisdiction to try the issue, or upon any other ground, the appellant should not be allowed to here question the District Court's jurisdiction for the first time.
From all of the foregoing, it is my conclusion that the decree of the District Court being valid as to the parties before the court, should be affirmed, except that part thereof which undertakes to quiet title or interest in or to the estate against all unknown heirs of said decedent and all unknown persons claiming any lien upon or right, title or interest in or to the estate of said decedent.
Therefore I dissent.