Estate of Vaughan

WASTE, C. J.

Leonard Ovid Vaughan died testate, leaving an estate which was subsequently inventoried in an amount in excess of $230,000. By the terms of the will practically the entire estate, all of which was declared by

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the testator to be his separate property, was divided among the decedent’s children, grandchildren, and other relatives. He bequeathed to his wife, Grace B. Vaughan, “one thousand dollars and no more.” After the admission of the will to probate, the surviving wife instituted a contest, and filed a petition for revocation of the will upon various grounds, and citation was issued. David N. Kelly, the executor of the will, Gertrude F. Wagner, a daughter, and various minors by their guardian

ad litem,

A. W. Rutan, filed an answer, putting in issue the allegations of the contestant. The citation was served on Edna Vaughan Daniels, a daughter of the decedent, and on Howard Smith Vaughan, a son, among others, but they did not appear. Other than noted, there were no appearances, pleadings, or opposition to the contest.

When the matter came on for hearing, the contestant, the parties who had answered, and Charles E. Wagner, as trustee for the grandchildren, appeared and stipulated for the entry of a judgment and decree. The stipulation was approved by the court, and on April 12, 1927, a decree was entered by the terms of which it was ordered (1) that the contest of the surviving wife of the decedent be denied; (2) that there be distributed to her, in lieu of the provision in the will, certain designated and described real property; (3) that there be distributed to Gertrude F. Wagner certain real property, with a provision for the execution by her of a promissory note in favor of the trustee for the grandchildren, and (4) “that in all other particulars, distribution be had in accordance with the last will and testament of said deceased.” No notice of the entry of the decree was given to any of the parties named in or served with the citation.

On the sixth day of May following, Edna Vaughan Daniels and Howard Smith Vaughan severally filed notices of intention to move for a new trial of the proceeding to revoke the probate of the will. The motions, each of which was noticed to be made on statutory grounds and upon the minutes of the court, came on regularly for hearing and were duly argued. The court took the matter under advisement, but no decision or order disposing of the motions was made. Within sixty days after its entry Edna Vaughan Daniels and Howard Smith Vaughan each filed in the court below a notice of appeal to this court from the judgment and decree entered by stipulation on April 12th. All the parties who