First National Bank & Trust Co. v. Stonehouse

*13 Burr, J. Anna Thompson owned real estate in Ramsey county. By will she left ber property to ber four children, among whom were Lottie Clare and Lenore Thompson. Tbe will was admitted to probate in Grand Forks county in December, 1934. Apparently tbe real estate involved was tbe only property in tbe estate. In July, 1938, tbe plaintiff commenced an action in tbe district court of Ramsey county against tbe daughters Lottie and Lenore and attacked their interests in the real estate. In September, 1935, tbe executrix petitioned tbe county court for leave to sell tbe real estate to pay tbe debts of tbe decedent and the costs of tbe administration. Thereunder tbe property was sold on October 28, 1935, and a surplus of $4,252.56 remained after paying tbe debts and costs. Tbe executrix filed ber final report and account; a decree of distribution was entered giving each of tbe daughters involved one-fourth of tbe surplus; this was paid to them, tbe estate closed on October 29, 1935, and tbe executrix discharged. On October 11, 1935, tbe plaintiff obtained a judgment for $6,517.90 in rem against these two daughters, and on October 22, 1935, filed with tbe county court of Grand Forks county, in this estate, certified copies of tbe judgment, tbe warrant of attachment, and tbe notice of levy under tbe attachment. A special execution under .attachment was issued, tbe interests of these two daughters in tbe real estate sold, and a certificate of sale issued to tbe plaintiff on November 9, 1935. On November 19, 1935, tbe plaintiff petitioned tbe county court of Grand Forks county for an order “vacating and setting aside tbe order allowing tbe final report and account of tbe executrix and tbe final decree entered” in tbe estate of Anna E. Thompson, deceased, and for leave to intervene in tbe probate proceedings. This proceeding on tbe part of tbe plaintiff is based on tbe claim that by reason of its attachment lien and subsequent judgment it became tbe successor in interest of these two daughters in their mother’s estate, that tbe executrix knew of its claim and gave no notice to plaintiff of any application *14 for distribution of the surplus and closing of the estate, and that under the law plaintiff is entitled to the share paid to these two daughters. The county court denied the petition, the district court sustained the action of the county court, and the plaintiff appeals. There is no attack on the regularity of the proceedings whereby plaintiff obtained the judgment against these two daughters, nor on the regularity of the proceedings in the county court other than it is the claim of plaintiff that the shares in the estate paid to these two daughters should have been paid to the plaintiff under the facts stated. Plaintiff concedes that the executrix had the right to sell the real ■estate to pay the debts of the decedent; but claims that its attachment lien was, by operation of law, transferred from the interests of the heirs in the property to the interests of the heirs in the proceeds of the sale, and that it was the duty of the county court to assign to the plaintiff the shares in the estate which would otherwise have been assigned to these two daughters, under chapter 144 of the Session Laws of 1931, amending § 8852 of the Comp. Laws, which provides: “Partition or distribution of the real and personal estate may be made as provided in this chapter, although some of the original heirs, legatees or devisees may have conveyed their share to other persons and such shares must be assigned to the persons holding the same, in the same manner as they otherwise wordcl have been, to such heirs, legatees or devisees.” No attack is made upon the closing of the estate — the attack is directed to refusal of the court to reopen the estate. We need not determine whether the attachment lien on real estate was transferred to the proceeds of the sale; nor whether the alleged transfer of the attachment lien is such conveyance as is included in chapter 144 of the Session Laws of 1935; nor whether the county court, not being a court of equity jurisdiction, could pass upon the validity of the plaintiff’s lien or proceed to foreclose it, nor whether this would be necessary. Neither 'do we need to determine what effect the filing of the certified copies of the attachment, notice of levy, and judgment had on the liability of the executrix or on the administration of the estate; nor need we discuss whether the plaintiff has an action against the executrix for paying these heirs after the filing of these certified copies. At the time the application to reopen was made the heirs had been paid under a decree of' final distribution. The plaintiff herein was not a party to the *15 proceedings in the county court; and while the county court has authority and power in each case “to require by order an executor .■ . '. 'or other person subject to the jurisdiction of the court to perform any duty imposed on him by statute or by the court under the authority of the statute” (Comp. Laws, § 8584), the application can be made by a party only. The plaintiff seeks the right to intervene; but intervention cannot be had after a matter is settled. While the rules of civil procedure may be applicable to the proceedings in county court, intervention is only permitted before trial. Comp. Laws, § 7413. The estate has been closed. The money paid to the debtors is no longer under the control of the court. No authority is cited suggesting that the administration of an estate can be opened at the application of one not a party to the administration and, with reference to the settlement of the account of the executor, “The settlement of the account and the allowance thereof by the court, or upon appeal, is conclusive evidence against all persons in any way interested in the estate, saving, however, all persons laboring under any legal disability, their right to move for cause to reopen and examine the account. . . .” Comp. Laws, § 8837. Had the estate been reopened, it would not benefit the plaintiff. There was nothing the county court could do for it. The judgment of the lower court is affirmed. Burke, Oh. J\, and Nuessre, Morris and Christianson, JJ., concur.