— At thе May term, 1899, of the probate court of Morgan county, the defеndant as the executor of the will of John Lumpee made final settlement of the estate of his testator at which time it was found that thеre was in his hands as such executor the sum of $2,780.80. The distributees were six in number of which the plaintiff was one. After approving the final settlement the court made an order of distribution to each on'e of said distributеes for $463.34.
On the twenty-ninth day of December, 1899, on the applicatiоn of the plaintiff, the said court issued an execution against the defendant executor, for her share under said order of distribution. At the February term of said court for 1900, the defendant moved the court to quаsh said execution and
Much has been said by the respondent about the conclusivеness of the final judgments of probate courts, which no one is prepared to dispute, provided the courts in which these judgments arе rendered were acting within the rules of their jurisdiction. There is no doubt but what the court in the case under consideration had jurisdiction of thе subject-matter, but it is denied by the appellant, and we think justly, that it did not have jurisdiction of the parties. It appears from the record thаt none of the distributees had notice of the intended order of distribution, and the defendant who was not only the executor but also a distributеe had no knowledge that the order had been made until the execution in question had been issued. In a recent decision of the Supreme Court,
It would be well enough for the probate court, in making a new order, as it will be compelled to do if the distributees demand it, to be guided by the directions of the will. Reversed with directions to quash the execution.
Notes
Presumably, Lilly v. Menke,