92 P. 306 | Kan. | 1907
The opinion of the court was delivered by
This is an appeal from an order of distribution made by the probate court of Brown county in connection with the final settlement of an estate. Emily F. Lewis died leaving four children, namely, E. B. Lewis, George W. Lewis, Addie R. Wells, and Susan E. Woodrum, and E. B. Lewis was appointed administrator of his mother’s estate. An inventory and appraisement disclosed that the estate consisted of money in the bank, amounting to $33.15, and a iportgage against M. E. Wells and Addie R. Wells securing
“That this is a case where the appointment of an administrator was not necessary, the fund which was taken possession of by said administrator and reported to this court having been made up by said E. B. Lewis, George W. Lewis and Addie R. Wells in the lifetime of said Emily F. Lewis, and a mortgage taken to provide a security fund for the support and maintenance of the said Emily F. Lewis during her life, she having sold all of her interest in the land of her deceased husband, and her care, support and maintenance being a part of the consideration therefor, and the said sum being in fact no part of the estate of the said Emily F. Lewis, but belonging under said arrangement to said three mentioned children.”
The court thereupon ordered and adjudged that the balance of $3548.14 be distributed in three equal parts, one-third to E. B. Lewis, one-third to George W. Lewis and one-third to Addie R. Wells, and specifically ordered that no part of the sum should be distributed to Susan E. Woodrum. In the order the administrator was discharged and his bondsmen relieved from further liability. This order was made on February 9, 1904, and it was then found that Susan E. Woodrum had actuál notice of the hearing which resulted in the order, but no appeal from the decision was taken. On March 19, 1907, Susan E. Woodrum filed a motion in the probate court alleging that she was a daughter and heir of the decedent and entitled to her share of the
The ruling cannot be uph.eld. The probate court had power to hear and determine the question submitted for its decision. Susan Woodrum had both constructive and actual notice of the hearing and must be deemed to have had her day in court. That court found from the evidence that she was not entitled to a share in the residue of the estate, and, as already decided, it has power in such a hearing to determine who is entitled to the funds in the hands of the administrator and all questions necessary and proper to the distribution of the estate.
“The final settlement and .closing up of an estate is a judicial determination to which all interested are summoned, and by which all having a day in court are concluded. (Musick v. Beebe, Adm’r, 17 Kan. 47.) It is in the nature of a final judgment that the estate is fully administered, intended as a protection for the administrator and his sureties, and is ordinarily conclusive and final, unless vacated by appeal, impeached for fraud, or set aside by direct proceedings brought for that purpose.” (Proctor v. Dicklow, 57 Kan. 119, 125, 45 Pac. 86.)
Assuming, however, that th'e probate court could then have modified its judgment, the relief sought could not have been granted on the application which was made. That of which she complained was not an irregularity in obtaining the judgment, but it was an error of law in rendering the judgment. No irregularities were charged against the parties, the court or its officers, but according to her theory a wrong decision upon the facts presented was made by the court. After the term of court expired and its judgment had become final it could not be opened or modified except for the causes and in the manner prescribed by statute. The relief she asked did not come within the statutory ground assigned in her motion and was rightfully refused by the probate court. While she was probably entitled to take an appeal from the decision of the probate court denying the motion, it was error for the district court to set aside the decision for any of the causes assigned.
The judgment of the district court is reversed and the cause remanded for further proceedings.