Huebschmann v. Cotzhausen

WiNslow, J. If the circuit court was right in its conclusions to the effect that the county court had jurisdiction to make the order of January 3,1885, and that fraud in the obtaining of that order was not proven, then this judgment must be affirmed. That the court was right in both conclusions is quite clear to our minds. When a person dies leaving real and personal estate disposed of by will, the county court of the county where the testator resides has jurisdiction to entertain proceedings for the probate of that will, and for the due and orderly settlement of the estate which 249 passes thereby, and, upon conclusion of the settlement of the estate, to make a final order distributing the remaining personalty, if any, and assigning the real estáte in accordance with the provisions of the will. It would seem almost unnecessary to state this proposition. Such is the course of procedure contemplated by the statute, and such has been the course followed by the county courts of this state from the time of their organization. R. S. secs. 3940-3955; Gary, Prob. Law, § 625 et seq. True it is that title to real estate passes by the will (when duly probated), and not by the decree of the court; but this argues nothing against the power and jurisdiction of the court to make the order. "What the effect of this order may be, whether conclusive or only prima facie proof of the title as between the parties to the proceeding, is a matter which it is unnecessary to discuss or decide in this case. It is sufficient that the court has jurisdiction to make the order, and the question of its effect upon the title is immaterial. As to the question of the alleged fraud and imposition upon the court by the respondents Both and Ootzhausen in the obtaining of the order, we have examined the evidence,, and are entirely satisfied that the court was right in its conclusion upon the facts that there was no fraud proven. By the Court.— Judgment affirmed.