Ashlock v. Sherman

Rothbook, J. 1. practice : oeeíBugs^aémurrer. I. The Circuit Court has exclusive jurisdiction of t¿e probate of wills and the settlement of estates. Code, § 2312. It also has general original jurisdiction in all civil cases. The subject-matter 0p this proceeding should have been entitled as in probate, and not as an original action in equity. It was a matter pertaining to the settlement of an estate, and the relief sought was a modification of an order in probate. But, by section 2513, it is provided that an error as to the kind of proceedings adopted in the action is waived by a failure to move for its correction at the proper time. An error in the kind of proceedings adopted is not ground for demurrer. The cause should be transfei’red to the proper docket on motion. Conyngham v. Smith, 16 Iowa, 471; Traer v. Lytle, 20 Id., 301. 2.-: probate court: powers of. II. It is urged that the facts stated in the petition do not entitle the plaintiff to the relief demanded. It seems to us that the Circuit Court, having all parties in inter-_ „ . -w i -, est beiore it, may moclity probate orders upon proper showing being made therefor, and that the allegation of the inconvenience and impracticability of making an investment of the money in question in an annuity was sufficient cause for modifying the previous order of the court, so as to ' make the fund available for the purpose to which it was devoted under the will. In our opinion the demurrer was properly overruled. Affirmed.