297 N.W. 111 | Minn. | 1941
Under separate petitions, application for admission to probate of two wills was made. Each claimed his instrument to be the last will and testament of Milton F. Showell. Petitioner for the alleged will of June 29, 1935, was Annie M. Roberts, representing the Minneapolis Branch of the Volunteers of America, the principal beneficiary, who filed objections to the April 21, 1936, will, of which Irene J. Saucier, the sole beneficiary, was petitioner and contestant of the Volunteers will. February 25, 1938, the probate court, after hearing all evidence on both petitions and objections together, made and filed an order which admitted to probate the Saucier will but which did not specifically deny admission of the Volunteers will. In a petition to the probate court on October 7, 1938, the Volunteers alleged that notice of this order was first actually received September 12, 1938, when, upon inquiry of the probate court, its existence was discovered. The petition sought the vacation of that order, a rehearing, and an order either granting or denying the admission of the Volunteers will.
Upon the ground that its failure to give notice to the Volunteers of this order excused their failure to appeal or seek rehearing, the probate court vacated the original order. An amended order was made which specifically admitted the Saucier will and specifically denied the Volunteers will and a rehearing. From this order both the Volunteers and Saucier appealed to the district court. There, before any hearing on the merits, a motion by Saucier to vacate the probate court's vacating order and dismiss the Volunteers appeal was granted. It is this order of the district court which we are called on to review.
The only question presented for decision is whether the district court erred in setting aside the amended order of the probate court upon the ground that the probate court acted without jurisdiction. *541
After its consideration of all evidence on both wills, the probate court admitted one to probate. 3 Mason Minn. St. 1940 Supp. § 8992-57. The necessary effect of admitting one will to probate was the exclusion of the other for the very evident reason that there can be only one last will and testament. An order admitting a will to probate is appealable. 3 Mason Minn. St. 1940 Supp. § 8992-164(1). As aggrieved parties, such an appeal might have been taken by the Volunteers. Application to the probate court for an order specifically denying admission of their will was not necessary. Consequently, any suggestion that the probate court's first order was deficient or incomplete permitting no appeal by the Volunteers is without persuasive effect.
That right of appeal, however, could and did expire for want of timely prosecution. Where no notice of the filing of an order admitting a will to probate has been served by the prevailing party, an appeal "may be taken by any person aggrieved * * * within six months after the filing of such order * * *." 3 Mason Minn. St. 1940 Supp. § 8992-166; In re Estate of Herrman,
After the time for appeal from an order has expired, only a restricted power is possessed by the probate court to vacate or amend previous orders. In re Estate of Simon,
The difficulty presented on this appeal is due entirely to a failure on the part of the district court to distinguish between jurisdiction and error. It annulled the probate court's order vacating its previous order on the ground of lack of jurisdiction on the part of the probate court. This was erroneous. The probate court had jurisdiction whether the showing in support of the motion to vacate was sufficient or insufficient to justify vacation of the previous order. On the appeal to the district court that court had before it de novo
the motion to vacate, and had it there considered that motion on the merits and reversed the probate court there could have been no question as to the propriety of the result, and this court would have been compelled to affirm. In re Estate of Turner,
The order vacating the probate court's order vacating its previous order is reversed and the case remanded with directions to consider the motion to vacate on the merits of the motion.
So ordered.
