In re the Estate of Gragg

Gilfillan, C. J.1 This is an appeal from an order of the district court, reversing, on appeal, an order of the probate court, refusing to vacate its previous order allowing certain claims against the estate of Levi Gragg, deceased. The probate court appears to have refused to vacate the order, not upon the merits of the application, but upon the proposition that it had no power to vacate it. Whatever doubt might previously have existed as to the probate court having the power to vacate, in certain cases, its judgment or order, was removed by the sixth subdivision of Gen. St. 1878, o. 49, § 13, which provides for an appeal from “an order vacating or refusing to vacate a previous order or judgment made or rendered, alleged to have been procured by fraud, misrepresentation, or through surprise, or excusable inadvertence or neglect.” This subdivision was not in force when the case in State v. Probate Court of Ramsey Co., 19 Minn. 85, (117,) arose. On the merits of the application the district court was clearly right. The heirs of Gragg, in whose behalf the application to vacate was made, resided out of the state, and had no actual notice of the administration, and this would excuse their neglect to appear and oppose the claims. The claims were very stale, the larger being over 30 years old and the other over 20. They were allowed without any’ contest or objection on the part of the administrator, who appears to have been attorney for one, at least, of the claimants, and without any attempt, so far as appears, by him to communicate with the heirs, and ascertain whether they disputed the claims. There is strong ground to ■charge collusion between the administrator and the claimants. The heirs ought to have an opportunity to contest the claims. Order affirmed. Footnotes [1] Dickinson, J., because of illness, took no part in this decision.