Tomlinson v. Phelps (In re Phelps' Estate)

• Decision Date: 25 November 1904
• Citation: 101 N.W. 496,93 Minn. 350
• Parties: In re PHELPS' ESTATE. TOMLINSON et al. v. PHELPS et al.
• Court: Minnesota Supreme Court

93 Minn. 350

101 N.W. 496

In re PHELPS' ESTATE.TOMLINSON et al.

v.PHELPS et al.

Supreme Court of Minnesota.

Nov. 25, 1904.

Appeal from District Court, Hennepin County; Willard R. Cray, Judge.

In the matter of the estate of Willis Phelps. Petition by Lucy Tomlinson and others against Henry W. Phelps, Sr., and others. An order amending a decree of distribution was reversed in the district court, and petitioners appeal. Affirmed.

Syllabus by the Court

1. An order of the probate court which vacates in part a previous order is appealable under subdivision 9, § 4665, Gen. St. 1894.

2. By section 4730, Gen. St. 1894, the probate court in limited in amending its decrees and orders to the same extent as provided for the district court, and the district court has no power to modify its judgment after the time has expired for taking an appeal therefrom, except in certain cases as provided by section 5267, Gen. St. 1894.

Held, in this case, the probate court having modified its previous decree after the time had elapsed for appealing, it had no jurisdiction, it appearing that the previous decree so modified or amended had not been entered by reason of a mistake of fact or through a clerical error. Jay W. Crane, for appellants.

Lancaster & McGee, for respondents.

LEWIS, J.

In 1881 Willis Phelps, a resident of Springfield, Mass., executed his last will and testament, which made various devises to his relatives, and contained the following provision: ‘Authority is given to my executors to sell and dispose of any and all my real estate in the state of Massachusetts, and to invest the proceeds.’ At the time of his decease the testator left certain real estate in Minneapolis, Minn., and a decree of distribution was issued out of the probate court of Hennepin county in 1895, in which the court found that it was the testator's intention to establish an active trust in all of his estate, to continue during the lives of the executors, and the survivors of them, and to vest in them the title and ownership of the real and personal estate for certain purposes; among them the following: ‘With power to sell, lease, manage, control, convey, mortgage, exchange and dispose of the same, or any part thereof, in such manner as to the trustees and survivors should seem meet.’ Eight years later-in September, 1903-appellants filed a petition with the probate court praying for an amendment to the decree of distribution by striking out those portions above referred to which granted to the trustees the power of alienation and to mortgage the estate. The ground upon which the petition was presented was that by clerical mistake the language conveying such power of alienation was erroneously inserted in the decree. An answer was filed to the petition, and, the matter having come on for a hearing, the probate court made an order amending the decree of distribution as prayed for. From that order appeal was taken by respondents to the district court, and judgment was ordered therein reversing the order of the probate court. Petitioners appealed to this court from an order denying their motion for a new trial. Upon the trial in the district court the petitioners moved to dismiss the appeal from the probate court on the ground that the order of that court was not appealable. The motion was denied. It is only necessary to dispose of two of the questions raised on this appeal: Was the order of the probate court appealable? If it was an appealable order, had the time for taking such appeal expired, and did the probate ...