of any want of notice of the decree or irregularity in the proceeding, if made to appear that the administrator was appointed by a court of competent jurisdiction, upon notice as prescribed by law. This is not a suit where a litigant is claiming adversely to the title of the decedent, or under a title not derived from or through the decedent. The latter portion of the section provides that, when a "competent court" shall have appointed an administrator upon due notice, no objection to any subsequent order or decree therein can be taken by any person claiming under the deceased, "on account of any such want of notice," in any other manner than on direct application to the same court "made at any time before distribution," or on appeal. When the statute reads that no objection to any subsequent order, etc., can be taken "on account of any such want of notice," what notice is meant? I think, the notice just mentioned and referred to in the section-the notice given for the appointment of the administrator. If, for instance, after an administrator has been regularly appointed of an estate in which the decedent left A., B., C., and D. surviving him as his heirs at law, A., B., and C. should thereafter petition the court, and therein allege that they are the only heirs, waive the giving of notice for distribution of the estate, ask the court to distribute all the property of the estate, consisting of real and personal property, to them, I do not think such a decree or judgment of distribution, made on the same day and at the same time of the filing and presentation of the petition, and without notice, would be binding upon D., and would divest him of all right, title and interest in and to the property of the estate, or bar him from thereafter asserting or claiming any right, title, or interest therein, except on appeal, or "on direct application to the same court made at any time before distribution."

When a distribution is made, as was the case in the Toronto estate, on the same day of the filing and presentation of the petition for distribution, and without notice, I do not see how any one interested in the distribution or entitled to a distributive share of the estate, and who had

no notice of such a proceeding, could "at any time before distribution" apply to the court making the distribution, for relief from such a judgment or decree of distribution. To say that he may assail the judgment on appeal (if it is his good fortune to somehow obtain information within the time, six months, in which an appeal may be taken, that proceedings of distribution had been had and a judgment rendered) is also but to say that he may directly attack it. To say that he may not attack the judgment except on appeal, "or on direct application to the same court at any time before distribution," is to assert that the judgment has all the binding effect of any other judgment. Under our statute, when a person dies intestate, his property passes to his heirs. Of course, it is subject to debts and expenses of administration. When an administrator is appointed, the property is subject to the control of the court for the purposes of administration. But the statute directs to whom the property shall be distributed and prescribes the proceedings to be had for distribution. After an administrator has been appointed, on proper notice, the court may not, upon his petition, or another, without notice, take the property away from the heirs and give it to a stranger; nor may the court, without notice of any kind take it away from one heir entitled to a distributive share, and give all of it to other heirs; nor can it be successfully asserted that such action, so taken in defiance of law and of the requirements of the statute, is but an irregularity, and assailable only on direct attack. When the court takes property from one person to which he is entitled and gives it to another, such person is entitled to notice, and to his day in court. He is entitled not only to his day in court on an appeal, but to his day in court before the tribunal that takes it away from him.

It, however, is said that the plaintiff neither alleged nor proved that the deceased left legal heirs who were entitled to a distributive share, other than those who petitioned for distribution, waiving notice, and to whom the property was distributed. That implies that if the plaintiff had shown

that there was an heir who was entitled to a distributive share, and did not join in the petition waiving notice for distribution, and had not obtained his distributive share, then the court was without jurisdiction to make the distribution. But since the plaintiff did not aver nor prove the existence of such an heir, then the court had jurisdiction. Thus the question of the court's jurisdiction is made to depend upon the further question as to whether the court correctly or incorrectly adjudged the matter brought before it, or as to whether the result reached, when considered in respect of particular facts shown, was right or wrong.

When the proceeding, as here, is a special statutory one, and not in accordance with the course of the common law, the jurisdiction of the court, though a court of general jurisdiction, must affirmatively appear upon the record, and no presumption will be indulged in support of its decree or judgment when such jurisdiction does not thus affirmatively appear. If the jurisdiction of the court is thus made to appear, then the judgment rendered, though erroneous, would be a shield to ward off any claim which an heir or his assigns or representatives might assert to the property in the hands of the plaintiff. But suppose a person who is an heir, and entitled to a distributive share, but who had not joined in the petition for distribution, asserts a claim to his distributive share of the property in the hands of the plaintiff, would the decree or judgment rendered by the court distributing all the property to others, without notice of any kind, be a shield in the hands of the plaintiff against such a claim? If it would, then why would not a judgment of settlement and distribution of an estate also be a shield to a creditor's claim asserted against the property in the hands of a distributee or his assigns where the settlement and distribution were had without publishing or giving notice to creditors? I do not think it would in either instance. If in a case a settlement and distribution were had without notice to creditors, and the title of a distributee was questioned or assailed for the want of such a notice, it could as well be asserted that to make the assault successful it must

be averred and shown that there were creditors, as here to assert that the plaintiff was required to aver and show that there were heirs entitled to a distributive share who had not joined in the petition for distribution waiving notice.

But, aside from these considerations, the title depending upon a decree of distribution rendered on proceedings without notice was, I think, sufficiently doubtful and uncertain as to expose the plaintiff to the hazards of litigation, and thereby render the title not marketable, until the court of last resort, in a proper proceeding before it, has finally determined and adjudicated that a court in probate proceedings has jurisdiction to render a decree of distribution without notice. Suppose this court, in this proceeding between the plaintiff and the defendant, should now adjudge the title good and marketable, of what avail is the adjudication in the hands of the plaintiff in a case where an heir entitled to a distributive share, and who had not joined in the petition for distribution waiving notice, asserted a claim against the property in the hands of the plaintiff?

I think, from the terms of the written agreement entered into between the plaintiff and the defendant, it may be fairly presumed that the parties themselves thought that sufficient doubt and uncertainty existed with respect to the title by reason of the distribution without notice as to require some action or proceeding to clear up the title, and that such doubt and uncertainty led to the making of the agreement, by the terms of which the defendant agreed to take such steps or to pay the plaintiff the sum of one hundred and fifty dollars for such purpose. The defendant, upon demand, refused to do either; and, when he so refused, I think a breach of his contract occurred.

I therefore think that upon the issues, and upon the agreed statement of facts, the plaintiff was entitled to recover, and that the court erred in rendering judgment in favor of the defendant, and in dismissing the complaint.

STATE v. BLAKE.

No. 2087. Decided November 29, 1909 (105 Pac. 910).

1. CONSPIRACY-CRIMINAL CONSPIRACY-DEFRAUDING OF REAL PROPERTY. Under Comp. Laws 1907, section 4156, punishing two or more persons who conspire to defraud another of any property by means which are criminal, or which, if executed, would amount to a cheat or to obtaining money or property by false pretenses, conspiring together to cheat another of real property by any means which, if executed, would amount to a cheat would be a criminal conspiracy; that the conspiracy related to realty being immaterial. (Page 611.)

2. CONSPIRACY-CRIMINAL CONSPIRACY-NATURE OF ACTS. To constitute a criminal conspiracy, it is not necessary that the acts agreed to be done would be criminal if done, if they would amount to a civil wrong. (Page 611.)

3. CRIMINAL LAW-EVIDENCE-HEARSAY.

In a prosecution for conspiracy whereby another was induced by false representations to purchase worthless mining stock, a letter to the purchaser from an officer of the mining company stating that the stock was practically worthless, written in reply to a letter from the purchaser inquiring as to the financial condition of the company, was inadmissible as hearsay; the alleged conspirators not being connected therewith, or knowing thereof. (Page 612.) 4. CRIMINAL LAW - APPEAL - HARMLESS ERROR-ADMISSION OF EVIDENCE-PREJUDICIAL EFFECT. The admission of the letter was prejudicial, there being no other evidence showing the value of the stock or that the representations made were false. (Page 612.)

5. CRIMINAL LAW-CRIMINAL CONSPIRACY-ADMISSION OF EVIDENCELETTERS. In a prosecution for criminal conspiracy for inducing the purchase of worthless mining stock by false representations contained in letters to the purchaser, stating that the stock was valuable, and urging him to buy it for resale, such letters were not admissible in evidence, where it was not shown that they were written with the knowledge, or by procurement, of the conspirators. (Page 612.)

6. CRIMINAL LAW-CRIMINAL RESPONSIBILITY-SUFFICIENCY OF EVIDENCE. In a prosecution for criminal conspiracy by inducing the purchase of mining stock by false representations, contained in letters written to the purchaser, evidence held not to show that the letters were written with the knowledge or procurement of the alleged conspirators. (Page 612.)