233 N.W. 305 | Minn. | 1930
The first question is whether upon the record made in the district court it had the power to amend the original final decree of the probate court more than three years after it was rendered. We think the answer must be in the negative. Appeals from the probate court are tried de novo in the district court. G. S. 1923 (2 Mason, 1927) § 8988.
"The issue on appeal is the same as it was in probate court. * * * The question is not whether the determination of the probate court was right upon the record made in that court or upon the evidence then obtainable, but whether the same order would be proper upon the record made and the evidence produced in the district court." Benz v. Rogers,
The district court had to try the appeal upon the petition for the amendment of the decree that was filed in the probate court, for no other pleading was presented in the district court. Such petition should set forth facts which would authorize an amendment of the decree, and these facts must be substantiated with sufficient proof in the district court to authorize that court to amend the decree. We are of opinion that the averments of the petition show a mistake of law rather than mistake of fact. Neither fraud nor mere clerical error is charged. The petition, after reciting the probate proceedings, that the widow was the sole heir at law, that the homestead was set off to her, that she had made no written renunciation of the will, continues:
"That by reason of the fact that said Elizabeth Turner elected to and did take under said will, said petition to set aside said homestead to her was improperly made and that this court was *531 thereby misled by said petition into the belief that said Elizabeth Turner was taking under the statute and not under the will."
Then, after setting out those parts of the final decree assigning the homestead in fee to the widow, it states:
"That said parts do not conform to the facts and do not express the real intention of this court, and in that, through inadvertence and by reason of the fact that said homestead had been set aside to said Elizabeth Turner pursuant to a petition whereby she made claim to her statutory allowance, this court was caused to believe that said Elizabeth Turner was taking under the statute and not under the will."
We construe these averments to charge mistakes of law, if mistakes at all, and not mistakes of fact. The will, its probate, the setting aside of the homestead to the widow, and all other matters referred to were documentary in the files and records before the court. It is not alleged that the probate court was ignorant of its own orders previously made, or of the contents of the will, or of the contents of the final decree of distribution, or that said decree was signed under the belief that it was not the document it purports to be. So much for the insufficiency of the allegations of the petition.
When it comes to supporting these allegations in the district court, there is nothing at all upon which to predicate any amendment of the final decree entered in the probate court on July 8, 1925. The appeal was from the order directing the amendment of that decree. When the appeal reached the district court, the return of the probate court of the proceedings had upon the petition for the amendment of the decree accompanied as a part of the appeal, and of course the order appealed from was one of the documents. But it is to be remembered that upon such appeal there was a trial de novo of the issue raised by the petition, and clearly the order of the probate court would not be evidence of facts alleged in the petition. The appeal annulled that order, and it was for the district court to determine the appeal upon competent evidence adduced before it. And surely, in such a situation, the order appealed from *532 cannot be used as evidence to establish the allegation of the petition. The trial of the matters of the petition being de novo, the burden was upon the petitioners to adduce competent proof of matters which would authorize or empower the district court to amend the decree of July 8, 1925. We think there was an utter lack of such proof.
Final decrees of the probate court are of great importance, embracing as they so often do the devolution of title to real estate. It is to be presumed that they express the deliberate judgment of that court upon the construction of wills where such direct the disposition of property. Such decrees should not be disturbed upon the mere say so of the probate judge, years after made, that the intended construction of the will was not expressed or that the will was forgotten because there had been a previous order made without proper consideration and hence erroneous. The right to amend was here exhausted, except where good grounds are clearly shown, as indicated by Tomlinson v. Phelps,
The district court also concluded that the decree of July 8, 1925, correctly assigned in fee the homestead to the widow. But, since we are clear that neither the petition nor any proof made a case authorizing any amendment of the decree long after the time for appeal therefrom had expired, anything now said regarding the widow's right under the will to take the fee to the homestead would be obiter.
The order is affirmed. *533