Chapter 1 APPEALS FROM PROBATE AND JUSTICES’ COURTS TO DISTRICT COURTS
§ 17-101 — 17-107. Appeals to district courts — Procedures. [Repealed.]
This chapter, which comprised C.C.P. 1881, §§ 665 to 671; R.S., & C.L., §§ 4838 to 4844; C.S., §§ 7179 to 7185; I.C.A.,§§ 11-301 to 11-307, was repealed by S.L. 1971, ch. 268, § 1. For present comparable law, see the Idaho Rules of Civil Procedure and Idaho Appellate Rules.
Chapter 2 APPEALS IN PROBATE MATTERS
§ 17-201. Appealable judgments and orders.
An appeal may be taken to the district court of the county from a judgment, or order of the magistrates division of the district court in probate matters:
- Granting, refusing or revoking, or refusing to revoke, letters testamentary, or of administration, or of guardianship.
- Admitting, or refusing to admit, a will to probate.
- Against or in favor of the validity of a will, or revoking or refusing to revoke the probate thereof.
- Against or in favor of setting apart property, or making an allowance for a widow or child.
- Against or in favor of directing the partition, lease, mortgage, sale or conveyance of real property.
- Settling an account of an executor, administrator or guardian.
- Refusing, allowing or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy or distributive share.
- Confirming report of appraiser setting apart the homestead.
C.C.P. 1881, § 662; R.S., R.C., & C.L., § 4831; C.S., § 7173; am. 1927, ch. 68, § 1, p. 84; I.C.A.,§ 11-401; am. 1935, ch. 71, § 1, p. 125; am. 1971, ch. 269, § 1, p. 1074.
Entry made by judge in his docket, “damages, $310.00,” is not a judgment from which an appeal will lie to the district court. Grey v. Cederholm, 2 Idaho 34, 3 P. 12 (1884).
An order denying the issuance of an order to show cause why real estate of decedent should be sold to pay debts is appealable. State ex rel. Missoula Mercantile Co. v. Whelan, 6 Idaho 78, 53 P. 2 (1898).
An order of the court refusing to admit a will to probate is appealable. In re Paige’s Estate, 12 Idaho 410, 86 P. 273 (1906).
Parent or guardian is not bound by order adjudging a child delinquent and sending him to industrial training school, unless such parent or guardian appeared or was brought into the proceeding. If he was a party, he has a right of appeal under this section. In re Sharp, 15 Idaho 120, 96 P. 563 (1908). Collateral Attack.
Where an administrator’s payments of interest on mortgage indebtedness were approved by the court and the administrator’s account, including the final account, acknowledged liability on the note and mortgage, the order settling the final account and distributing the realty involved, subject to the lien of the mortgage, was conclusive on the validity of the mortgage, and could not be collaterally attacked. Horn v. Cornwall, 65 Idaho 115, 139 P.2d 757 (1943).
Failure to Take Appeal.
Where no appeal was taken from either the order of October 26, 1954, providing for the family allowance or an order of May 26, 1952, these being appealable orders and no appeal having been taken therefrom, they became final. Lundy v. Lundy, 79 Idaho 185, 312 P.2d 1028 (1957).
Nature of Right of Appeal.
Right of appeal in probate matters is purely statutory and can be taken only from judgments, orders, decrees, and proceedings enumerated in the statute. In re Coryell’s Estate, 16 Idaho 201, 101 P. 723 (1909).
By enactment of this section, the legislature intended that certain actions taken by the courts handling the settlement of decedent’s estates were of such material consequence; that it was essential that the decisions reached by the courts in those areas should be subject to review by a higher court regardless of whether such decisions were final judgments. In re Estate of Pierce, 95 Idaho 625, 515 P.2d 1017 (1973).
Nonappealable Orders and Judgments.
Where a claim against an estate is allowed and then set aside, an appeal will not lie from the order setting aside the former allowance, as such claim is then pending against the estate. In re Coryell’s Estate, 16 Idaho 201, 101 P. 723 (1909).
There is no provision for an appeal from an order made subsequent to closing of estate. Chandler v. Probate Court, 26 Idaho 173, 141 P. 635 (1914).
An order declaring the nature of property in probate proceedings is not appealable, and an appeal is properly taken from the decree of distribution of the court. In re Skinner’s Estate, 48 Idaho 288, 282 P. 90 (1929).
No appeal lies from an order refusing to revoke the probate of a will. Porter v. Porter, 54 Idaho 99, 28 P.2d 898 (1934).
An appeal to district court from an order denying a motion for a change of venue, or to correct the record or to strike out, is not such an appeal as is authorized by statute. Vaught v. Struble, 63 Idaho 352, 120 P.2d 259 (1941).
An order refusing the appellant’s petition for distribution taking it under consideration and finding and ordering that the estate was not ready in that there were unpaid bills was not a final order which was appealable. Lundy v. Lundy, 79 Idaho 185, 312 P.2d 1028 (1957).
Where the district court initially heard the objection by children of intestate to the classification of a motel as community property in the administratrix’s proposed final accounting, the district court’s order declaring the motel to be community property was not an appealable order. In re Estate of Freeburn, 97 Idaho 845, 555 P.2d 385 (1976).
Scope of Review.
Appeal from an order directing a conveyance of property will not authorize a review of the action of the court in directing a sale, since appeals are specifically authorized from each of said orders. Reed v. Stewart, 12 Idaho 699, 87 P. 1002 (1906).
Where objections are raised to an accounting and report in the administration of a decedent’s estate and a contested hearing is held concerning those objections, the court must make findings of fact and enter conclusions of law in respect to the objections and the account. Spencer v. Idaho First Nat’l Bank, 106 Idaho 316, 678 P.2d 108 (Ct. App. 1984).
Timeliness of Appeal.
No appeal having been taken or motion made within the specified time limits, the decree of distribution became a judgment, final and conclusive upon the parties to the probate court proceeding, as to all provisions thereof not changed by the amended decree, which did not affect appellant’s interest; therefore, her appeal was untimely. Frasier v. Frasier, 87 Idaho 510, 394 P.2d 294 (1964).
In re Christensen’s Estate, 15 Idaho 692, 99 P. 829 (1909); Connolly v. Probate Court, 25 Idaho 35, 136 P. 205 (1913); Mason v. Pelkes, 57 Idaho 10, 59 P.2d 1087 (1936); Woodland v. Spillman, 75 Idaho 286, 271 P.2d 819 (1954); Yribar v. Fitzpatrick, 91 Idaho 105, 416 P.2d 164 (1966); Knudson v. Bank of Idaho, 91 Idaho 923, 435 P.2d 348 (1967); State, Dep’t of Law Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 595 P.2d 299 (1979); Kunzler v. Kunzler, 109 Idaho 350, 707 P.2d 461 (Ct. App. 1985).
§ 17-202. Undertaking not required of executor. [Repealed.]
This section, concerning executor’s undertakings, which comprised C.C.P. 1881, § 663; R.S., R.C., & C.L., § 4832; C.S., § 7174; I.C.A.,§ 11-402, was repealed by S.L. 1975, ch. 242, § 1. For present comparable law, see Idaho Rules of Civil Procedure and Idaho Appellate Rules.
§ 17-203. Effect of reversal.
When the order or decree appointing an executor, administrator or guardian is reversed on appeal for error, and not for want of jurisdiction of the court, all lawful acts in administration upon the estate, performed by such executor, administrator or guardian, if he have [has] qualified, are as valid as if such order or decree had been affirmed.
C.C.P. 1881, § 664; R.S., R.C., & C.L., § 4833; C.S., § 7175; I.C.A.,§ 11-403.
The bracketed word “has” near the end of this section was inserted by the compiler for clarity.
§ 17-204. Manner of taking appeal. [Repealed.]
This section, regarding the manner of taking appeals, which comprised 1903, p. 372, § 1; reen. R.C. & C.L., § 4834; C.S., § 7176; I.C.A.,§ 11-404; am. 1971, ch. 269, § 2, p. 1074, was repealed by S.L. 1975, ch. 242, § 1. For present comparable law, see Idaho Rules of Civil Procedure and Idaho Rules of Appellate Procedure.
§ 17-205. Undertaking. [Repealed.]
This section, concerning undertakings on appeal, which comprised 1903, p. 372, § 2; reen. R.C. & C.L., § 4835; C.S., § 7177; I.C.A.,§ 11-405, was repealed by S.L. 1975, ch. 242, § 1. For present comparable law, see Idaho Rules of Civil Procedure and Idaho Rules of Appellate Procedure.
§ 17-206. Hearing on appeal. [Repealed.]
This section, concerning hearing on appeal, which comprised S.L. 1903, § 3, p. 372; reen. R.C. & C.L., § 4836; C.S., § 7178; I.C.A.,§ 11-406, was repealed by S.L. 1971, ch. 269, § 3. For present comparable law, see Idaho Rules of Civil Procedure and Idaho Rules of Appellate Procedure.