State Ex Rel. O'Neil v. District Court , 96 Mont. 393 ( 1934 )

I think the district court properly set aside the second decree on the application of Fousek. I concede that the court has jurisdiction to modify a decree of distribution of an estate in a proper case. But it may do so only upon notice to all interested parties. (In re Cote's Estate, 98 Me. 415, 57 A. 584; and seeAull v. St. Louis Trust Co., 149 Mo. 1, 50 S.W. 289.) In fact, our statute (section 9187) requires notice to adverse parties. In part it provides: "The court may likewise, in its discretion, after notice to or in the presence of the adverseparty, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and upon like terms allow an answer to be made after the time limited by this Code; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken."

In my opinion, my associates are in error in holding that notice of such an application may be given by complying with section 10330, Revised Codes 1921. That section by its own terms has to do with notices of application for distribution of an estate. When the final decree of distribution was made, it released the property from control of the probate court and from further administration. (Bancroft's Probate Practice, secs. 1126, 1147.) It was such a judgment as is contemplated in section 10558, which in part provides: "1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a decedent, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title to the thing, the will, or administration, or the condition or relation of the person." The finality of such an order is also provided for in section 10328. It was subject to being set aside upon application under section 9187, but only upon notice to all interested parties.

Section 9187 is not found in the probate statutes, and it is inconceivable that, after a decree of distribution of an estate has been made and the administrator has been discharged, as here, notice of proceedings under section 9187 can be had by posting or publication, as provided in the probate statute, section 10330. This the learned trial judge understood and required notice to be served personally on all the heirs. At the time of so doing he did not know that Fousek had acquired the interest of one of the heirs, or doubtless he would have required notice to be served upon him. I think it is plain that notice of proceedings under section 9187 must be made as provided in sections 9778 et seq., Revised Codes 1921, which require the serving of written notice by a personal delivery. That this is so is made plain by section 10365. If notice under section 9187 can be had by posting or publication, then when an appeal is taken from an order of distribution, as authorized by section 10328, the notice thereof could be given by posting or publication. This conclusion seems to me unwarranted when section 10365 is considered.

It is conceded here that Fousek had no notice of the proceedings resulting in the second decree, except such as came from a compliance with section 10330, which, so far as he was concerned, was by posting and by publication. When this fact was brought to the attention of the court, as here, it was not only its right, but its manifest duty to set aside the second decree entered without proper notice to Fousek. (Compare Mitchell v.Banking Corporation of Montana, 94 Mont. 183,22 P.2d 155.) As to him, the second decree was absolutely void, for want of jurisdiction over his person. Had the court denied his motion, it would not only have denied to him the right to be heard and thus denied to him due process of law, but would have failed "to give heed to ``the rudiments of fair play.'" (Life CasualtyIns. Co. v. McCray, (U.S.) 54 Sup. Ct. 482, 484, 78 L.Ed. ___, decided March 5, 1934.)

My associates say that, if Fousek had the notice that was required by law to be given to the heirs, it was sufficient. Conceding this to be so, I think my associates are in error in supposing that notice to the heirs to modify a decree of distribution may be given by posting or publication. Let us suppose that M.L. O'Neil desired to resist the motion to modify the first decree and that no notice was served upon him except by posting under section 10330. Can it be that, after the decree of distribution was made and the estate closed, it was necessary that he, at his peril, watch the billboards for posted notice of a motion to set aside the decree under section 9187, or of an appeal under section 10328? The question, of course, calls for a negative answer. And on what theory is Fousek, who purchased the property of M.L. O'Neil at execution sale before the second decree was entered, chargeable with a greater degree of vigilance? None can be suggested. The fact that M.L. O'Neil had actual notice of the proceedings to set aside the first decree cannot affect the rights of Fousek, for their interests had become antagonistic.

Neither do I think Fousek must of necessity be relegated to a court of equity on the theory of seeking relief from fraud. Obviously, the only interest Fousek has in the property is that, if any, which M.L. O'Neil had. Whether the latter had any interest in the property depends upon whether he had received the advancement claimed by him as his full share of the estate. That is an issue for the probate court to determine. (Bancroft's Probate Practice, sec. 1143; 24 C.J. 522.) On that issue Fousek should have the opportunity to be heard, regardless of the question of fraud.

I think the writ should be denied. In my opinion, the court's order setting aside the second decree was correct. The district court should now, after due notice to Fousek and all other interested parties, set down the petition of Joseph O'Neil for a hearing upon the question of a modification of the first decree.