Harrison v. Cannon

• Decision Date: 09 March 1949
• Docket Number: 8847.
• Parties: HARRISON v. CANNON et al.
• Court: Montana Supreme Court

203 P.2d 978

122 Mont. 318

HARRISON v. CANNON et al.

No. 8847.

Supreme Court of Montana

March 9, 1949

Rehearing Denied March 25, 1949.

Appeal from District Court, Fourth Judicial District, Lake County C. E. Comer, Judge.

Action to quiet title by Anna Ella Harrison against John Cannon and others. Defendants filed a cross-complaint seeking to have title quieted in them. From a judgment in favor of plaintiff defendants appeal.

Affirmed.

Hugh J. Lemire, of Miles City, and John D. French of Polson, for appellants.

Lloyd I. Wallace, L. L. Evans and F. N. Hamman, all of Polson, for respondent.

METCALF Justice.

James Harrison died intestate in Lake county on the 29th day of October 1939. Surviving him were his wife Anna Ella Harrison, the plaintiff and respondent herein, a brother, William Harrison, and four sisters, Elizabeth Hudeman, Sarahann Rooney, Mary Rodgers and Rose Cunningham, the defendants and appellants. This is an action to quiet title to certain lands formerly owned by James Harrison, deceased. From a judgment quieting title to said lands in the plaintiff, the defendants have appealed.

The pertinent facts are: Letters of administration were duly issued in the estate of James Harrison, deceased. On the 17th day of June 1940, the administrator filed his first and final account and report of administration and his petition for final distribution of the estate. The residue of the estate in the hands of the administrator for distribution consisted solely of real estate. The administrator proposed to distribute the estate among the heirs, giving one-half interest to Anna Ella Harrison, as widow of the deceased, and one-third interest to her as dower. The remainder of the estate was to be distributed among the brothers and sisters.

On June 20, 1940, the surviving widow of the deceased, Anna Ella Harrison, the plaintiff herein, filed objections to the petition of distribution. At the same time she filed her election to take one-half of the real estate in lieu of dower, as authorized by section 5821, R.C.M.1935. $The objection to the distribution for the reason that the widow had elected to take real estate in lieu of dower was sustained. Thereafter, on October 29, 1940, the administrator filed a supplemental account. No notice of hearing of the supplemental account was posted or published or served. On November 7, 1940, the decree of settlement of the first and final account was signed by the district judge.

The court's decree in part was as follows:

'And it appearing to the Court that the widow, Anna Ella Harrison, is entitled to one-half of the estate as an heir of said decedent, and it also appearing that said widow has elected, by an instrument in writing on file herein, to have and take one-half of the real estate of said decedent in lieu of dower, * * *

'It is hereby adjudged and decreed, That all the acts and proceedings of said Administrator as appearing upon the records hereof, be and the same are, hereby approved and confirmed, and the residue of said estate of James Harrison, deceased, hereinafter particularly described and now remaining in the hands of said Administrator, and any other property not now known or discovered, which may belong to the said estate, or in which the said estate may have any interest, be and the same is hereby distributed as follows, to-wit:

'The whole thereof to Anna Ella Harrison.'

On June 3, 1941, William Harrison, defendant herein, petitioned the court to vacate and set aside the decree of distribution. The grounds for that petition were:

(1) That no notice of the settlement of the supplemental account was posted or published as required by law and therefore the court was without jurisdiction to enter said decree;

(2) That said decree was erroneous in distributing the entire estate to the widow, thus depriving the surviving brothers and sisters of their distributive shares.

The petition to vacate and set aside the decree was heard on July 1, 1941, and on that day the widow filed objections to the petition, which were overruled by the court and a hearing on the 'issues of fact and law' raised by the petition, set. The hearing on the petition was had in open court on the 23rd day of September 1941. The court heard evidence and argument and on September 26, 1941, filed an order denying the petition. There was no appeal from the decree of distribution and no attempt to appeal from the adverse ruling on the petition to vacate the decree.

On June 10, 1947, Anna Ella Harrison instituted an action to quiet title to the lands awarded her by the decree of distribution. The defendants answered, by denying the validity of the decree of distribution and by filing a cross-complaint asking the court to quiet title in them to an undivided one-half interest in the real estate formerly owned by James Harrison, deceased. From an adverse judgment the defendants have appealed.

In their answer and cross-complaint in the instant case the defendants have raised the same objections to the decree of distribution entered in the Estate of James Harrison, deceased, that they made in their petition to vacate and set aside the decree of distribution in June of 1941. In their specifications of error they have assigned as error the same objections that they originally raised in the June petition to vacate and set aside the decree.

The effect of a decree of distribution is set forth in section 10328, R.C.M.1935, which provides: 'In the order, the court or judge must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for, and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal.'

'* * * while such a decree is not, strictly speaking, a judgment, it is treated as a judgment and the mode of review applicable to a decree in probate proceedings * * *'. Hoppin v. Long, 74 Mont. 558, 578, 241 P. 636, 645. Citing Ryan v. Kinney, 2 Mont. 454; State ex rel. McHatton v. District Court, 55 Mont. 324, 176 P. 608; 3 Bancroft's Probate Practice, sec. 1147, p. 1884.

Therefore, in the absence of fraud, a decree of distribution made upon due notice is conclusive of the rights of heirs, as against collateral attack. An attempt to invalidate a judgment, or a decree having the force and effect of a judgment, in a quiet title suit is a 'collateral attack.' Sanborn v. Lewis v. Clark County, 113 Mont. 1, 120 P.2d 567; Lander & Co. v. Brown, 110 Mont. 128, 99 P.2d 217; Frisbee v. Coburn, 101 Mont. 58, 52 P.2d 882.

Conceding that the court was in error in finding that the entire estate belonged to the surviving widow of James Harrison, deceased, under the provisions of the statute of succession and distribution then in effect (sec. 7073, R.C.M.1935, prior to amendment by Chapter 140, Laws of Montana of 1941), in the absence of appeal or some other statutory method of correcting the decree, it became final in the same manner as any other judgment and property rights determined therein were conclusively settled. Vantilburg v. Black, 3 Mont. 459, 468.

But here the contention of the appellants is that there was no notice of the hearing on the petition for final distribution. The only notice posted was for the hearing on the first and final account and petition for distribution of the administrator filed on June 17, 1940. The appellants were satisfied with this petition and had the estate been distributed in accordance with its terms they would have secured the portion to which they were entitled. But after the surviving widow filed objections which were allowed, and the administrator filed his supplemental account, the court's order of distribution denied the appellants any portion of the estate. The appellants contend that this so-called 'supplemental account' was so materially different that in effect it was a new petition for distribution and should have been noticed as provided by sections 10300 and 10330, R.C.M.1935. Relying on In re Davis' Estate, 35 Mont. 273, 88 P. 957 and Lamont v. Vinger, 61 Mont. 530, 202 P. 769, the appellants assert that such notice was necessary in order to give the court jurisdiction to order the distribution of the estate and failure to give the statutory notice rendered the decree void and open to collateral attack. See also Hoppin v. Long, supra, and State ex rel. O'Neil v. District Court, 96 Mont. 393, 30 P.2d 815.

The statute provides that when any account is rendered for settlement, the judge may fix a date for its settlement and must give notice therefor. Sec. 10299, R.C.M.1935. When the settlement is for a final account, the notice must so designate. Sec. 10300, R.C.M. The purpose of this section and of section 10299 is to bring all interested parties within the jurisdiction of the court and bind them by the court's orders. In re Kostohris' Estate, 96 Mont. 226, 29 P.2d 829. On the day set for the hearing on the account, whether it be an interim account or a final account, any person interested may appear and file exceptions in writing to the account and contest the same and the hearing may be postponed to any subsequent day by the court. At the same time that the final account is...