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2. Citations for hearing petition for the admission of a will to probate and the issuance of letters testamentary or of administration with will annexed.

3. Citation for hearing, petition for decree of descent.

4. Orders limiting the time to file claims and fixing the date of hearing of said claims.

5. Citations for hearing petition to sell, lease or mortgage land. 6. Citations for hearing petition for settlement and distribution in estates of deceased persons.51

51. Powers of probate courts-Witnesses-Citations-Contempt of court-Adjournments-Amendment of records-Statute-In addition to their general powers under the constitution, probate courts shall have the same power as district courts in the following matters:

1. To examine witnesses and parties on oath, to compel their at tendance, to preserve order during any proceedings before it, and punish contempts;

2. To issue citations, subpoenas, and attachments, to make orders, judgments, and decrees, to issue all necessary executions, warrants, or processes to enforce them, and to issue commissions to take depositions;

3. To adjourn any hearing from time to time, provided that when objection is made the adjournment shall be only for cause, shown by affidavit or otherwise;

4. To correct, modify, or amend its records to conform to the facts, and to correct its final decrees so as to include therein property omitted from the same or from administration."2

52. Vacation of orders, judgments and decrees-Opening defaults— Amendment of records-A probate court may vacate an order, judgment or decree procured by fraud, misrepresentation, or through surprise of excusable inadvertence or neglect.58 Probate courts have the

51 Laws 1917, c. 216.

52 G. S. 1913, § 7211. See 117 Am. St. Rep. 954 (authority to punish for contempt).

53 G. S. 1913, § 7490 (8); In re Gragg's Estate, 32 Minn. 142, 19 N. W. 651 (vacation of order allowing claims-collusion between administrator and claimants); In re Hause, 32 Minn. 155, 19 N. W. 973 (vacation of order allowing guardian's account--opening default-ignorance of proceedings-accident or other circumstance preventing party from appearing); Fern v. Leuthold, 39 Minn. 212, 215, 39 N. W. 399 (vacation of final decree procured by fraud or erroneously rendered by inadvertence); In re Kidder's Estate, 53 Minn. 529, 55 N. W. 738 (vacation of order allowing claim held

not justified by the facts-failure of applicant to appear and oppose claim inexcusable under the circumstances); In re Thompson's Estate, 57 Minn. 109, 58 N. W. 682 (an estate having been fully administered, the administration closed, and the administrator discharged, and the estate assigned to one as sole heir, a will devising the real estate to others was subsequently admitted to probate and an administrator with the will annexed appointed-held, there being nothing to administer, there could be no legitimate charges of administration under the second administrator for which real estate could be sold, that he had no interest in the real estate and could not apply for a revocation of the decree assigning it); McNamara v. Casserly, 61

same power as district courts to correct, modify, or amend their records to conform to the facts, and to correct their final decrees so as to include therein property omitted from the same or from administration.5* They cannot modify or reverse their orders, judgments or decrees for mere error of law after the time to appeal therefrom has expired.55 This limitation of time does not apply in case of "mistake, inadvertence, surprise, or excusable neglect." 5 They cannot vacate their orders, judgments or decrees after the subject-matter has passed beyond their jurisdiction. The probate of a will cannot be vacated for failure to appoint a guardian for minors interested in the estate. 58

Minn. 335, 63 N. W. 880 (vacation of void decree of distribution); Larson v. How, 71 Minn. 250, 73 N. W. 966 (vacation of order admitting will to probate on application of party who failed to appear and oppose probate); Levi v. Longini, 82 Minn. 324, 84 N. W. 1017, 86 N. W. 333 (vacation of order allowing a guardian's account obtained by fraud); State v. Bazille, 89 Minn. 440, 95 N. W. 211 (vacation of final decree to permit creditor to present claim); Bradley v. Bradley Estate Co., 97 Minn. 130, 106 N. W. 338 (vacation of order allowing final account of administrator); St. Paul Gaslight Co. v. Kenny, 97 Minn. 150, 106 N. W. 344 (vacation of final decree of distribution -when allowable as against purchaser from heir or distributee); Southern Minnesota Investment & Loan Co. v. Livingston, 117 Minn. 421, 136 N. W. 8 (opening default to allow a contest on a will-when an application to open a default is denied by the trial court its action will not be disturbed on appeal unless the record discloses an abuse of discretion in passing upon it, not only as to the excuse for the default, but also as to the good faith and merit of the claim sought to be asserted by the applicant); Pierce v. Maetzold, 126 Minn. 445, 148 N. W. 302 (a surety on a representative's bond may be heard on an application to correct an order settling the account of the representative or to

set it aside for fraud); Savela v. Erickson, 138 Minn. 93, 163 N. W. 1029 (amendment of final decree to let in afterborn children not provided for in decree); Amundson v. Hanson (Minn.) 185 N. W. 252 (changing the name of a purchaser at a private sale under a license in an order confirming the sale). See title "Vacation" in index.

54 G. S. 1913, § 7211 (4); State v. Probate Court, 84 Minn. 289, 295, 87 N. W. 783; Tomlinson v. Phelps, 93 Minn. 350, 101 N. W. 496; Savela v. Erickson, 138 Minn. 93, 163 N. W. 1029. See Kurtz v. St. Paul & Duluth R. Co., 65 Minn. 60, 67 N. W. 808; Hanson v. Ingwaldson, 77 Minn. 533, 80 N. W. 702; Dunnell, Minn. Digest and Supplements, §§ 5091-5107.

55 Thomlinson v. Phelps, 93 Minn. 350, 101 N. W. 496; Knutsen v. Krook, 111 Minn. 352, 358, 127 N. W. 11.

56 Savela v. Erickson, 138 Minn. 93, 163 N. W. 1029.

57 State v. Probate Court, 33 Minn. 94, 22 N. W. 10. See Hurley v. Hamilton, 37 Minn. 160, 33 N. W. 912; Kurtz v. St. Paul & Duluth. R. Co., 65 Minn. 60, 67 N. W. 808: Hanson v. Ingwaldson, 77 Minn. 533, 80 N. W. 702; State v. Probate Court, 84 Minn. 289. 87 N. W. 783; Amundson v. Hanson (Minn.) 185 N. W. 252; and cases under §§ 33, 996, 978, 1081, 1082.

58 In re Mousseau's Will, 30 Minn. 202, 14 N. W. 887.

APPEAL TO DISTRICT COURT

53. What orders, judgments and decrees appealable-Statute-An appeal to the district court from a judgment, order, or decree of the probate court may be taken by any party aggrieved in the following cases: 59 1. An order admitting a will to probate and record or refusing the same.60

2. An order appointing an executor, administrator, or guardian, or removing him, or refusing to make such appointment or removal.1

3. An order authorizing or refusing to authorize real property to be sold, mortgaged, or leased, or confirming or refusing to confirm such sale, mortgaging, or leasing.2

4. An order allowing or disallowing the claim of a creditor against the estate, or disallowing a counterclaim, in whole or in part, to the amount in either case of twenty dollars or more.

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61 Mumford v. Hall, 25 Minn. 347, 354; Brown v. Huntsman, 32 Minn. 466, 21 N. W. 555 (on appeal by a guardian from an order removing him, any person, upon showing his right to be heard, may, without being formally entered as a party, bring the appeal to a hearing); State v. Probate Court, 83 Minn. 58, 85 N. W. 917 (an order restoring an incompetent person to capacity is not appealable under this subdivision though it results in the removal of the guardian); Chadwick v. Dunham, 83 Minn. 366, 86 N. W. 351 (where, in proceedings instituted upon the petition of the testamentary guardian for his appointment to that trust, the next of kin appeared and objected to such appointment, and also filed a petition setting forth that such testamentary guardian was not a suitable person to discharge the trust, a determination by the probate court in such a case that the guardian was competent and suitable is reviewable, and, upon appeal being taken, is entitled to be heard upon its merits in the district court); Foster v. Gordon, 96 Minn. 142, 104 N. W. 765 (an appeal from

63

an order admitting a will to probate does not affect an order appointing an executor unless an appeal is also taken from such order-overruled by Laws 1901, c. 147); Castigliano v. Great Northern Ry. Co., 129 Minn. 279, 152 N. W. 413 (no appeal lies from an order appointing a special administrator); Hayden v. Keown, 232 Mass. 259, 122 N. E. 264 (a representative who is removed cannot appeal from the order appointing his successor).

62 State v. Probate Court, 19 Minn. 117 (85); Dee v. Wilson, 91 Minn. 115, 97 N. W. 647 (an order of the probate court discharging an order upon a representative to show cause why the homestead devised by the will should not be sold to pay debts of the estate is an order refusing to direct the sale of real estate and appealable under this subdivision).

63 Capehart v. Logan, 20 Minn. 442 (395); State v. Probate Court, 28 Minn. 381, 382, 10 N. W. 209; State v. Probate Court, 51 Minn. 241, 53 N. W. 463 (no appeal lies under this subdivision from an order directing or refusing to direct payment of a claim against an estate); Smith v. Pence, 62 Minn. 321, 64 N. W. 822 (a claim for attorney's fees held not a claim against the estate and an order disallowing it held not appealable under this subdivision); State v. Probate Court,

5. An order or decree by which a legacy or distributive share is allowed or payment thereof directed, or such allowance or direction refused, when the amount in controversy exceeds twenty dollars.**

6. An order setting apart property, or making an allowance for the widow, the widow and children, or children, or refusing the same.65 7. An order allowing the account of an executor, administrator, or guardian, or refusing to allow the same, when the amount allowed or disallowed exceeds twenty dollars."

8. An order vacating or refusing to vacate a previous order, judgment, or decree alleged to have been procured by fraud, misrepresentation, or through surprise or excusable inadvertence or neglect.67

9. An order or decree directing or refusing a conveyance of real estate.68

10. A final judgment or decree assigning the residue of the estate of a decedent.69

11. An order denying an application for the restoration to capacity of any person under guardianship.70

72 Minn. 434, 75 N. W. 700 (order allowing claim after an amendment); State v. Probate Court, 76 Minn. 132, 78 N. W. 1039 (order allowing compensation to representative and attorney's fees and ordering them paid as expenses of administration held not appealable); Stellmacher v. Bruder, 93 Minn. 98, 100 N. W. 473 (part of claim allowed and part disallowed); First Unitarian Society v. Houliston, 96 Minn. 342, 105 N. W. 66 (id.); Knutsen v. Krook, 111 Minn. 352, 127 N. W. 11 (what is a claim against the estate a demand for the whole or a part of the estate is not a claim within this subdivision); State v. Probate Court, 142 Minn. 283, 171 N. W. 928 (an order on a claim of the state for reimbursement under Laws 1917, c. 409). See §§ 59, 68, 905.

64 Mintzer v. St. Paul Trust Co., 45 Minn. 323, 324, 47 N. W. 973 (appeal lies from an order fixing and determining the rights and estate of a surviving husband or wife in a homestead); State v. Willrich, 72 Minn. 165, 75 N. W. 123 (inapplicable to order affecting realty).

65 Tracy v. Tracy, 79 Minn. 267, 271, 82 N. W. 635. See Mintzer v. St. Paul Trust Co., 45 Minn. 323, 47 N. W. 973, and § 792.

66 Watson v. Watson, 65 Minn. 335, 68 N. W. 44 (applicable only to statutory

accountings-does not allow an appeal from an order based on a finding that an alleged accounting and settlement between a guardian and his ward, made after the latter became of age, had never been had or made); St. Paul Trust Co. v. Kittson, 84 Minn. 493, 87 N. W. 1012 (appeal from part of a final order on accounting of executor); Bradley v. Bradley Estate Co., 97 Minn. 130, 106 N. W. 338 (scope of review).

67 In re Mousseau's Will, 30 Minn. 202, 204, 14 N. W. 887; In re Gragg's Estate, 32 Minn. 142, 19 N. W. 651; In re Hause, 32 Minn. 155, 157, 19 N. W. 973; State v. Probate Court. 33 Minn. 94, 95, 22 N. W. 10; Larson v. How, 71 Minn. 250, 73 N. W. 966; Levi v. Longini, 82 Minn. 324, 84 N. W. 1017, 86 N. W. 333; Tomlinson v. Phelps, 93 Minn. 350, 101 N. W. 496 (order vacating part of previous order).

68 See State v. Probate Court, 33 Minn. 94, 22 N. W. 10.

69 State v. Willrich, 72 Minn. 165, 75 N. W. 123 (overruled by Laws 1899, c. 27). See Penstock v. Wentworth, 75 Minn. 2, 77 N. W. 420; Rong v. Haller, 106 Minn. 454, 456, 119 N. W. 405.

70 State v. Probate Court, 83 Minn. 58, 85 N. W. 917 (overruled by Laws 1901, c. 147).

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54. Appeal from part of an order or judgment-An appeal may be taken from a part of a final order, judgment or decree, if the part whereby the appellant is aggrieved is so far distinct and independent that it may be adjudicated on appeal without bringing up for review the entire order, judgment or decree. Where the probate court allows a portion and disallows the balance of a claim of the same general character presented against an estate of a deceased person, and an appeal is taken from that portion only of such order which disallows the claim, the appeal is not effectual and does not confer jurisdiction on the district court.72

55. Statutory-The right of appeal to the district court and a trial de novo there is statutory and not constitutional.78

56. Favored-Appeals from the probate to the district court are favored and the proceedings are to be liberally construed.1

57. Who may appeal-Statute-An appeal under § 7490, subd. 4 (53, supra) may be taken by the representative or by the creditor, and when the representative declines to appeal in such case any person interested in the estate as creditor, devisee, legatee, or heir may appeal in the name of such representative and by the same proceedings: Provided, that the person appealing in such case shall give a bond, conditioned to secure the estate from damages and costs, and also to secure the intervening damages and costs to the adverse party. In all other cases, the appeal can be taken only by a party aggrieved, who appeared and moved for or opposed the order or judgment appealed from, or who, being entitled to be heard thereon, did not appear and take part in the proceedings.75

58. Same-Who may appeal as an aggrieved party-An aggrieved party within the meaning of the statute is one who, as heir, devisee, legatee, or creditor, has what may be called a legal interest in the assets of the estate and their due administration.76 A mere debtor of the estate is not entitled to appeal as an aggrieved party." The estate, as such, cannot appeal.78 An executor propounding a will by which he is nominated may appeal as an aggrieved party from an order denying its

71 G. S. 1913, § 7492; Capehart v. Logan, 20 Minn. 442 (395); St. Paul Trust Co. v. Kittson, 84 Minn. 493, 87 N. W. 1012; First Unitarian Society v. Houliston, 96 Minn. 342, 105 N. W. 66.

72 Stellmacher v, Bruder, 93 Minn. 98, 100 N. W. 473. See First Unitarian Society v. Houliston, 96 Minn. 342, 105 N. W. 66.

73 Lipman v. Bechhoever, 141 Minn. 131, 169 N. W. 536.

74 Riley v. Mitchell, 38 Minn. 9, 35 N.

W. 472; First Unitarian Society v. Hou-
liston, 96 Minn. 342, 105 N. W. 66.
75 G. S. 1913, § 7491.

76 In re Hardy's Estate, 35 Minn. 193, 28 N. W. 219; Edgerly v. Alexander, 82 Minn. 96, 84 N. W. 653; Hayden v. Keown, 232 Mass. 259, 122 N. E. 264. See 119 Am. St. Rep. 740.

77 In re Hardy's Estate, 35 Minn. 193, 28 N. W. 29. See State v. Probate Court, 149 Minn. 464, 184 N. W. 43.

78 Estate of Columbus v. Monti, 6 Minn. 568 (403).

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