62 Colo. 505 | Colo. | 1917
delivered the opinion of the court.
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Statement of the Case:
Michael McLaughlin died April 8, 1910, leaving a last will and testament in which he gave, to his brother James, $2,000.00, to his brother Edward, $2,300.00, and the residue of the estate to three sisters and a brother, share and share alike. The property consisted principally of real estate. Edward was named as executor in the will, and April 15th filed a petition to have it probated and for letters testamentary. Citation was issued to the heirs and legatees. ‘ June 10, 1910, letters testamentary issued to Edwarh, who duly qualified. June 13, 1910, the will was admitted to probate. September 28, 1910, the estate was appraised at $5,200.00. January 25, 1911, Edward, as executor, filed a petition to sell real estate at private sale, alleging as the basis thereof: “That the just claims to be presented and allowed against the estate will probably amount to the sum of $8,000.00.” At this time neither he nor his wife had
Plaintiffs in error, the brothers and sisters of the deceased other than Edward, lived in Ireland, and had
July 31, 1911, the matter of approving the administrator’s final report, and his discharge, came on for hearing, and ón motion of the administrator the petition'and objections and affidavit in support thereof were all stricken from the files, and the final report as amended by the supplemental report of July 29th, was approved, and the administrator discharged. From this final order, objectors perfected an appeal to the District Court, where the matter came on for trial May 26, 1913. The District Court was requested to . assume jurisdiction of the matter, under the petition, which it refused to do, and after taking evidence on the objections, it found that the hearing on the allowance of the claims in the County Court was an ex parte affair; that the administrator had been imposed upon by the claimants; .that the cause in the District Court was on appeal from the order of the County Court of July 31,1911, denying the petition, overruling the objections, approving the final report, and discharging the administrator; that as a matter of law, the allowance of. the claims April 10, 1911, in the County Court was a final judgment from which no appeal was taken; that the appeal to the District Court was an attempt to relitigate the claims, the allowance of which was res judicata, and dismissed the appeal.
Opinon of the Court:
1. Objectors lived in Ireland and had no notice of the claims, of their allowance or of the proceeding to sell real estate until shortly before the hearing on final settlement, were not present and took no part therein,
County Courts have original jurisdiction in probate matters, and under the statute are clothed with equitable powers in the settlement of estates, in the exercise of which they can vacate and set aside the allowance of claims when attacked upon the ground of fraud in the procurement of judgments thereon.
The want of notice and inability of objectors to appeal is clearly shown, and the ease appeals strongly to the-equitable powers of the court. The petition for, and sale of the real estate was based upon the allowance of these alleged fraudulent claims; the court ordered the proceeds of the sale to be paid into court, which order was disregarded. Claimants were the successful bidders, but they paid no money to the administrator and in fact, no money whatever passéd in the transaction, the administrator simply taking their receipts for the amount of their claims and giving them an administrator’s deed.
At the time the petition and objections were filed, the entire matter was pending in court. The action was not an attempt by objectors to render the administrator liable for failure of duty, but was for the purpose of vacating and setting aside the allowance of the claims. All the parties were before the court, a lis pendens had been filed, and the rights of no third parties had intervened. The allegatons of the petition and objections directed the attention of the court, in no uncertain language, to the alleged fraudulent character of the claims, and under all the circumstances, it was error for it to refuse to take jurisdiction and try the matters presented. It declined
That the allowance of the claims, in the circumstances of this case, could be directly attacked by the method pursued, we have no doubt, and while the practice in probate matters in this character of cases does not seem to be definitely settled, we cite the following authorities as tending to support the views we have expressed.— Great West Co. v. Woodmas Co., 12 Colo. 46-60, 20 Pac. 771, 13 Am. St. Rep. 204; Clemes’ v. Fox, 25 Colo. 39, 53 Pac. 225; Taylor v. Marshall, 56 Colo. 214, 138 Pac. 25; Clemes v. Fox, 6 Colo. App. 377-383, 40 Pac. 843; Marshall v. Coleman, 187 Ill. 556-569, 58 N. E. 628; Schlink v. Maxton, 153 Ill. 447-452, 38 N. E. 1063; Goeppner v. Leitzelmann, 98 Ill. 409-414; Gibson v. Gibson, 82 Ill. 61; Rabbett v. Connolly, 153 Iowa 607, 133 N. W. 1060; In re Estate of Davenport, 85 Iowa 293, 52 N. W. 197; Davis v. Rhea, 90 Ark. 261-263; Lancaster v. Gould, 46 Ind. 397-400; Fitzpatrick v. Stevens, 114 Mo. App. 497, 89 S. W. 897; Garr v. Harding, 37 Mo. App. 24-30; Hurlbut v. Hutton, 44 N. J. Eq. 302-307, 15 Atl. 417; Lehman v. Bradely, 62 Ala. 31; Teague v. Corbitt, 57 Ala. 529; Pearson v. Darrington, 32 Ala. 227; Burnham v. Burnham, 46 App. Div. 513, 62 N. Y. Supp. 120; Burnham v. Burnham, 165 N. Y. 659, 59 N. E. 1119; Daingerfield v. Smith, 83 Va. 81-90, 1 S. E. 599.
The judgment is reversed and the cause remanded with directions to allow objectors to amend their pleadings in the District Court if they desire; to permit claimants to plead as they may be advised and to proceed to a
Reversed and •Remanded.