In re Herman's Estate

• Decision Date: 02 May 1924
• Docket Number: No. 23936.,23936.
• Court: Minnesota Supreme Court
• Parties: In re HERMAN'S ESTATE. Appeal of GAUER et al.

159 Minn. 274

198 N.W. 1001

In re HERMAN'S ESTATE.

Appeal of GAUER et al.

No. 23936.

Supreme Court of Minnesota.

May 2, 1924.

Appeal from District Court, Dakota County; W. L. Converse, Judge.

Proceeding to probate the will of John Herman, deceased, wherein Rudolph Steinbach, German consul general, filed objections on behalf of Elizabeth Gauer and others. From an order admitting the will to probate, objectors appealed to the district court, and from a dismissal of the appeal they again appeal. Reversed.

Syllabus by the Court

An appeal from an order or judgment of the probate court must be taken within 30 days from notice thereof, and within 6 months from the entry thereof.

The consul of a foreign country may take appropriate measures for protecting the interests of the citizens of that country, and for securing to them an opportunity to assert and maintain their claims to property; but he is not their personal agent, unless specially authorized to represent them, and service of process or notices upon him does not operate as service upon them in the absence of such authority.

Where a consul, without special authority, filed objections to a will on behalf of citizens of his country, service upon him of the order allowing the will did not limit the time within which such citizens could appeal therefrom. Moritz Heim and Albert Schaller, both of St. Paul, for appellant.

J. M. Millett, of Hastings, for respondent.

TAYLOR, C.

John Herman, a resident of the city of Hastings in Dakota county, died November 26, 1921, leaving an instrument purporting to be his last will and testament which was admitted to probate as such by the probate court of Dakota county on April 8, 1922. At the hearing in probate court, Rudolph Steinbach, German consul general at Chicago, with consular jurisdiction in the state of Minnesota, appeared by Moritz Heim, his attorney, and, alleging upon information and belief that the deceased left him surviving next of kin and heirs at law who were citizens and residents of Germany, filed objections to the allowance of the will for and on behalf of such heirs. On April 18, 1922, a certified copy of the order admitting the will to probate was served on Moritz Heim personally by a deputy sheriff at the direction of the attorney for the executor of the will. On October 6, 1922, the appellants served a notice of appeal to the district court from the order of the probate court admitting the will to probate, and in the notice of appeal asserted that they were next of kin and heirs at law of the deceased who were aggrieved by the order, and who, being entitled to be heard thereon, did not appear or take part in the proceedings in the probate court. On motion of the executor the district court dismissed the appeal for the reason that it was not taken within 30 days after the service upon Heim of the certified copy of the order allowing the will. The appellants appealed to this court from the order of dismissal.

The statute provides that no appeal shall be effectual for any purpose unless within 30 days after notice of the order, judgment or decree appealed from, the appellant shall serve a written notice of appeal upon the adverse party, his agent or attorney who appeared in court, and further provides that no appeal from an order, judgment or decree shall be taken after six months from the entry thereof. G. S. 1913, § 7492. No appeal from an order, judgment or decree of the probate court can be taken after the expiration of 6 months from the entry thereof, nor after the expiration of 30 days from the written notice of such order, judgment or decree to the party taking the appeal. Here the appeal was taken less than 6 months after entry of the order allowing the will,...