In Re the Estate of Parsell

WILBUR, C. J.

This is an appeal from an order modifying a decree of distribution. The application for the modification of the decree was made by the executor of the estate upon the ground of its mistake and inadvertence. By the decree of distribution a small portion of the estate, the sum of $1,389.35, was distributed to Josephine Sleight Marsh. The decree was dated February 23,1921, and entered March 1, 1921. In April, 1921, it was discovered that Josephine Sleight Marsh had died on the first day of June, 1920. An affidavit was made by the attorney for the executor, sworn

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to on August 19, 1921, stating that the executor was ignorant of the fact of death of Josephine Sleight Marsh at the time of the application for distribution and did not become aware thereof until April, 1921. This affidavit and a motion of the same date to amend the decree were filed with the county clerk August 23, 1921. The motion was brought on for hearing October 4, 1921, and an order was made and filed November 23, 1921, amending the decree of distribution by ordering the distribution of the amount theretofore distributed to Josephine Sleight Marsh to be distributed to the numerous residuary legatees under the will of the decedent, Julius M. Parsell. This order recites that the matter came on regularly for hearing on the fourth day of October, 1921, and that at that time Messrs. Daly and Daly appeared as attorneys for the executor of the estate of Julius M. Parsell and that Messrs. Clock, MeWhinney & Clock appeared on behalf of Hester and Bessie L. Marsh,

residuary legatees under the last will and testament of Josephine Sleight Marsh, deceased.

The notice of appeal from this order was signed by Messrs. Clock, MeWhinney

&

Clock, as attorneys for Hester and Bessie L. Marsh,

“residuary legatees and executrices under the last will and testament of Josephine Sleight Marsh, deceased.”

A transcript of the record prepared under the provisions of section 953a, of the Code of Civil Procedure has been filed in this court and a brief of the appellants, but no reply brief has been filed. The substantial question presented by the record and the one passed upon by the trial court is the question of whether or not the residuary legatees of Josephine Sleight Marsh succeeded to her rights or whether, as the trial court concluded, the property under the terms of the will of the decedent passed to his residuary legatees. At the threshold of this inquiry we are met by the appellants’ contention that the court was without jurisdiction to amend or modify the decree for the reason that the application was not made to the court within six months of the date of the entry of the decree of distribution. But even if we assume that the application was made within six months the record presents a more serious question which we are reluctant to discuss in the absence of anyone representing the respondents or any argument on behalf of the appellants thereon. The question is this: What was the