In re Woodworth's Estate

• Decision Date: 24 May 1940
• Docket Number: 32415.
• Citation: 292 N.W. 192,207 Minn. 563
• Parties: In re WOODWORTH'S ESTATE.
• Court: Minnesota Supreme Court

292 N.W. 192

207 Minn. 563

In re WOODWORTH'S ESTATE.

No. 32415.

Supreme Court of Minnesota.

May 24, 1940

Appeal from District Court, Olmsted County; Karl Finkelnburg, Judge.

Proceeding in the matter of the estate of Flora Woodworth, deceased. From a judgment of the district court affirming an order of the probate court denying a motion to vacate the order of the probate court allowing the final account of Horace Fishback a former executor of the estate of Flora Woodworth, filed and presented by the representatives of the estate of Horace Fishback, deceased, an appeal is taken.

Judgment affirmed.

Syllabus by the Court .

An order adjusting and allowing the final account of an executor is the equivalent of a judgment or decree adjudging the amount due the estate from the executor, and may not be vacated, after the expiration of the time for appeal therefrom, except under the provisions of Mason's Minn.St.1927, §§ 9283 or 9405. Upon the record herein, the district court did not err in affirming the order of the probate court denying the motion of appellant, based upon the ground of fraud and mistake, to vacate its order adjusting and allowing the final account of a former executor of the estate, entered more than four years before the motion to vacate was presented.

Christensen & Ronken, of Rochester, and Frank G. Newhouse, of St. Paul, for appellant.

Daniel F. Foley, of Minneapolis, for Fidelity & Deposit Co. of Maryland.

Sawyer & Sawyer, of Winona, and Bailey, Voorhees Woods & Bottum, of Sioux Falls, S. D., for Horace Fishback, Jr., and Hartford Accident & Indemnity Co.

HOLT Justice.

The appeal is from this judgment of the district court affirming an order of the probate court of Olmsted County denying appellant's motion to vacate the order of said probate court of September 29, 1933, allowing the final account of Horace Fishback, the former executor of the estate of Flora Woodworth, filed and presented by the representatives of the estate of said Horace Fishback, deceased.

The short facts which control the decision of the appeal may be thus stated: In 1925 Flora Woodworth died testate, a resident of Rochester, this state. Horace Fishback was appointed executor of the estate by the probate court of Olmsted County in 1926. He qualified, the respondent the Fidelity & Deposit Company of Maryland going his bond. He filed an inventory of the estate the same year. In 1929 he died without having completed the administration of the rather large estate. At the time of his death he was a resident of Brookings County, South Dakota. He died testate and his two sons, Van D. Fishback and Horace Fishback, Jr., were duly appointed executors of his estate by the probate court of said Brookings County, and, in behalf of their father as his representatives, they filed his final account as executor of the estate of Flora Woodworth, deceased, in the probate court of Olmsted County, May 19, 1933, asking for its allowance. Objections to this account were filed by one of the legatees, Roy W. Hammond, asking that it be surcharged several thousands of dollars, because of alleged fraud and concealment by the deceased executor in respect to the assets of the estate. (It also appears that Van D. Fishback, after his father's death, was appointed administrator de bonis non of the estate of Flora Woodworth, deceased, by the probate court of Olmsted County and that he, on July 21, 1933, filed an account of his administration at the request of said Roy W. Hammond. That account also was objected to, but it is not involved in this appeal and the first 41 pages of the printed record are out of place here.) The hearing on the final account of the late executor, Horace Fishback, was continued from time to time until finally submitted June 29, 1933. On September 29, 1933, the court filed its order adjusting and allowing said account, the order ending thus: ‘ As conclusion from the foregoing facts it is hereby ordered and adjudged that said account as adjusted and modified as herein indicated be and the same hereby is settled and allowed as and for the final account of the administration of said Horace Fishback, the former representative of said estate. Dated September 29, 1933. By the Court, Bunn T. Willson, Judge of Probate Court.’ October 31, 1937, Van D. Fishback died, and, in December following, appellant was appointed and qualified as administrator de bonis non of the estate of Flora Woodworth. Thereupon he moved the probate court of Olmsted County to vacate and set aside its order of September 29, 1933. The motion was denied, and, on appeal to the district court, the action of the probate court was affirmed by the judgment now appealed from.

In the probate court as well as in the district court respondents appeared specially and objected to the jurisdiction of the courts for various reasons. We need not state or consider these objections, since it is plain that the district court entertained and decided, on the merits, appellant's motion to vacate and set aside the order of September 29, 1933.

The two assignments of error may be considered under the second one viz: The court erred in that the order for judgment herein is not justified by the statements of fact and law filed by the respective parties hereto. The chief legal proposition advanced by appellant is that, the probate court having once obtained jurisdiction of an estate, the proceeding is in rem, and, until final decree of distribution is rendered no order entered in the proceeding is final so as to deprive the court of power or jurisdiction to vacate, or alter the same. So far as having and retaining jurisdiction of the estate is concerned, it is conceded and is true; but there are matters, as between the estate and third persons, presented and determined by orders in the proceeding that...