delivered the opinion of the court.
Giusеppe Togneri, a resident of Chicago, died intestate in Italy, August 15, 1932. In September, 1932, letters of administration were issued by the probate court of Cook county to one Gabriele Bonaldi, a cousin of the deceased, who made proof of heirship, testifying that deceased was unmarried and left him surviving a brother, five sisters, two nephews and a niece, and a table of heirship was entered by the court accordingly. November 10, 1933, Bonaldi, as administrator, filed his final account reporting distribution of the balance of the estate, amounting to $3,975.73 in cash, in accordance with the court’s finding of heirship. The account was approved, and the administrator discharged by the probate court.
Some three years later, December 8, 1936, Fred Togneri, hereinafter referred to as petitioner, filed a petition in the probate court alleging’ that he was the sоn of Giuseppe Togneri, deceased; that when Bonaldi filed his petition for appointment as administrator and at the time when proof of heirship was made, Bonaldi knew that decedent was in fact married and had a child, Fred Togneri, the petitioner, who was then living; and the petition prayed that the order approving the final account and report of Bonaldi as administrator be vacated and set aside and for an order on Bonaldi to pay petitioner, as the son and only heir of Giuseppe Togneri, deceased, the entire proceeds of the estate. After a hearing on the petition the probate court on May 12, 1937, entered an order denying the relief prayed. Petitioner perfected an appeal to the circuit court where a trial de novo was had, and on June 30,1937, an order was entered allowing the рetition and ordering Bonaldi, the respondent, to pay petitioner, as the only heir of deceased, the sum of $3,975.73 which had previously been distributed and paid to the brothers and sisters, nephews and niece of the deceased. Respondent appeals from the order of the circuit court thus entered.
Petitioner takes the position that the probate court, in the exercise of its equitable powers, and the cirсuit court on appeal from the probate court, had the power to vacate its order of November 10, 1933, approving the final report and account of the administrator, and to direct him to pay petitioner the amounts which had previously been distributed and paid to those shown by the table of heirship. It is urged that no proper adjudication of the rights of interested parties can be made, unless and until jurisdiction by personal or constructive service, is obtained; that a court, in order to enter a final and binding order, must have jurisdiction of the parties as well as the subject matter; and that since petitioner had not yet reached his majority he is to be considered as the ward of the court, whose duty it is to see that his rights were properly protected. These various contentions resolve themselves into the controlling question, whether, in the absence of fraud, an administrator, who in good faith complies with the order of the court in the distribution of an estate, is protected by such order. This requires a consideration of the fundamental nature and purpose of proceeding’s for administration of the estates of deceased persons, which is well stated in Tilt v. Kelsey,
“When the owners of property die, that property, under the conditions and restrictions of the law applicable, is transmitted to their successors named by their wills or by the laws regulating inheritance in cases of intestacy. For a suitable time it is essential that the property should remain under the control of the state, until all just charges against it can be discovered and paid, and those entitled to it as new owners can be ascertained. . . . It is the duty of the sovereign to provide a tribunal, under whose direction the just demands against the estate may be determined and paid, the succession decreed and the estate devolved to those who are found to be entitled to it. . . . Somewhere the power must exist to decide finally, as against the world, all questions which arise in the settlement of the succession. Mistakes may occur and sometimes do occur, but it is better that they should be endured than that, in a vain search for infallibility, questions shall remain open indefinitely.” (Italics ours.)
The law is well settled that the judgment of the probate court, settling the estate of the deceased, was a judgment in rem. In Mosier v. Osborn,
Cleaveland v. Draper,
In the case of In re Coyne’s Estate,
Charlton’s Appeal, cited in the Coyne estate opinion (
In Exton v. Zule, 14 N. J. Eq. 501, an administrator who had made distribution to persons other than the rightful heirs, under an order of court, was protected by the court’s order, and it was held (p. 505): “The decree of distribution is in its nature a final decree. It concludes the rights of all parties, unless appealed from within six months from the time of making the decree. . . . There is no suggestion or pretence of any fraud or collusion in obtaining the decree, or in making distribution under it. It is conceded that the administrator acted in perfect good faith and in strict accordance with the decree of the court. . . . All he could ask or obtain at the hands of the court was indemnity in the performance of his official duty. . . . It may be true that neither the first nor the second set of claimants are the real next of ldn of the intestate— that thе parties actually entitled are yet undiscovered. But this will not authorize the Orphans Court, upon every new ray of light that may be received, to set aside their own decree lawfully made, and compel the administrator to pay the estate over again to every new claimant. It is the duty of the court, before the decree of distribution is made, to see that the case is clearly proved. If there be reasonable rоom for doubt as to the rights of the parties the decree should be denied. When once made, and not appealed from, it operates as an effectual shield to the administrator, and protects him against all other claimants. If a party entitled to a distributive share is by the decree deprived of his rights without actual notice and without a hearing, his only remedy is against the distributees who have received the estate. ...” (Italiсs ours.)
Likewise in Sayre v. Sayre, 16 N. J. Eq. 505, the court, in discussing the question under consideration, said (p. 509): “ . . . The decree would be an effectual protection to the administrator, against all claims for moneys paid pursuant to the decree, although it should prove that the decree was erroneous and the money paid to a party not entitled. The remedy in such case, by a party who has been deprived of his rights by the decree, is not аgainst the administrator, but against the distributees who have wrongfully received the estate. In their favor, as against the rightful claimant, the decree would not operate.”
It is obvious from these decisions that in the absence of fraud courts will afford protection to an administrator who in good faith has distributed the assets of the estate pursuant to the court’s order, and that the ordinary rules governing jurisdiction by personal or constructive notice are not applicable to the administration of the estates of deceased persons. Since proceedings in the probate court are not actions between party and party, but rather in the nature of a proceeding in rem, acting directly on the res, which is the estate of the deceased, interested parties under legal disability are also bound by a judgment which operates on the res as distinguished from one which operates against persons. In discussing a decree of distribution, the court, in Ladd v. Weiskopf,
This leads to a consideration of the remaining question, namely, whether the fraud charged in the petition of Fred Togneri was sufficiently shown by the required degree of proof. From evidence adduced upon the hearing in the circuit court it appears that respondent had known the deceased for over 20 years. Togneri first came to Chicago in 1911 or 1912, and remained for about a month or two. He then returned in 1917 or 1918, lived at respondent’s home with his family and worked together with him at the De Prado Statutary Company continuously from that time until July or August, 1931, when he left for Italy, where he died. In making proof of heirship Bonaldi was asked whether the deceasеd had ever told him that he had been married, and he answered, “Never; no.” Asked whether Togneri had at any time told him that he had lived with any woman, Bonaldi answered as follows: “I asked him one evening ‘Why don’t you get married,’ and he answered, ‘I don’t get married, because I had immoral relations with a woman and there was baby born, and he died.’ ”
To sustain the charge of fraud petitioner offered the testimony of Nicolina Rachiele, mother of petitioner, and the divorced wife of Gfiuseppe Togneri, the deceased. She then resided in Pittsburgh, Pa., and testified that she had been married to decedent on October 19, 1914, in Milwaukee, Wisconsin; that about a month later she came to Chicago with her husband and visited during the day and overnight at the home of Bonaldi, the administrator; that she had never seen Bonaldi thereafter, and was divorced from Togneri, the decedent, in Milwaukee in 1917; that Fred, thе petitioner, was born of this marriage July 3,1915, and had lived with her ever since; that the divorce decree made provision for the care of the minor child, but no payments were ever made by decedent, who left her before the divorce and never communicated with her thereafter.
Bonaldi categorically denied that Togneri and his wife had ever visited them in Chicago. He testified that he knew the persons named in the table оf heirship, having met them when he was a boy in Italy; that when he was appointed administrator of the estate he believed Togneri’s heirs to be as he found them, and paid out the money under the belief that they were the only heirs at law. After his appointment as administrator he located a safety deposit box at the bank, which was opened in the presence of an attorney named Ragalo and a representative оf the court. In this box he found a sealed letter on the envelope of which was written, in the decedent’s handwriting, “Not to be opened until I die.” The letter within the envelope, written in the decedent’s handwriting, was introduced in evidence, and translated reads as follows: 11 Giuseppe Togneri, January 7, 1932. I declare to leave brothers and sisters and $1,000 to Fannie and her brothers, and also take out the expenses for the funeral and a monumеnt of $500. Think of my closest relatives who are Fannie and her husband and G-abriele Bonaldi. Now then you have read and you will do what it says. Again I sign Grinseppe Togneri.”
Respondent testified that he had never seen petitioner before he appeared in court; that when the money was paid out by him as administrator he had “no idea that he had a son living”; and that when decedent left to go to Italy, where he died, he departed with the intentiоn of being married there. It appears from the evidence that after the payment of costs and administration expenses respondent paid to Dr. Gr. Castruceio, Royal Italian Consul Greneral, as legal representative of the heirs, the following sums: 1/7 to Alberto Togneri — $567.96; 1/7 to Zaira Togneri— $567.96; 1/7 to Teresa Togneri — $567.96; 1/7 to Maria Togneri — $567.96; 1/7 to Dinmira Togneri — $567.96; 1/3 of 1/7 to Vittorio Togneri — $189.32; 1/3 of 1/7 to Alfredo Togneri — $189.32; 1/3 of 1/7 to Fannie Bertolozzi — $189.33. The final account was signed and verified by Bonaldi, as administrator, and was approved in open court November 10, 1933, by John F. O’Connell, judge of the court.
It is argued by petitioner that by reason of the alleged visit of the decedent and his wife at Bonaldi’s home, where they stayed overnight, respondent had knowledge of the marriage of decedent and that the evidence disclosed no knowledge on the part of respondent of the subsequent divorce; and that by reason of the conversation related by respondent with reference to decedent having had immoral relations with a woman and the subsequent birth of a child, who had died, respondent “was put on notice that there had been a child born to the decedent.” We are unable to follow the logic of this argument. Respondent categorically denied that the decedent and his wife had ever visited in his home оr that he ever knew that he had a wife, and the conversation with decedent about his having had immoral relations with a woman resulting in the birth of a child who had died, would not tend to put the administrator on notice that there was a child living.
The law is well settled that if fraud is exercised in procuring a judgment, the court has jurisdiction to vacate the same. (Ashkinzae v. Jacobson,
The opinion in this cause was written May 5, 1938, but before the filing'thereof the death of Bonaldi, administrator, was suggested and a motion made by appellee that any order entered on the appeal be entered nunc pro tunc as of a date prior to May 30, 1938. Under the circumstances, we are of the opinion that the judgment of the circuit court should be reversed nunc pro- tunc as of the date of May 5, 1938, and it is so ordered.
Reversed.
Scant,an and John J. Sullivan, JJ., concur.