Kearney v. Kearney

Searls, C. J. This is an equitable action brought by the plaintiffs as heirs at law of J. W. Kearney, deceased, against the defendant, the widow of decedent, to set aside a certain decree of the Superior Court in probate, whereby a homestead was set apart to defendant.

The cause was tried by the court, findings in writing filed, upon which judgment in favor of defendant was entered. Plaintiffs appeal from the judgment, and the cause comes up on the judgment roll

The gravamen of the charge is fraud in procuring the decree whereby the homestead was carved out of decedent’s estate, and that no notice was given of the application or hearing in the proceeding for such decree.

The defendant was appointed administratrix of the estate of her deceased husband. There were no children, and the heirs at- law other than the widow are two brothers and a sister.

The property in question, upon which, deceased and defendant had their residence prior to the death of'the former, consisted of 320 acres of land, and was appraised at $4,200.

Subsequent thereto, and on-:the 1’8th of March, ,1873; defendant applied to the Probate Court by petition to have the same set apart to her as a homestead, and on a hearing before the court, but without notice to the other heirs, the property was found to be of less value than five thousand dollars, and was, by a decree duly entered, set apart to defendant, the widow, as a homestead.

In this action the court finds that the homestead,.when-[593]set apart, was of the value of ten thousand dollars, but that defendant in good faith believed the same was of no greater value than five thousand dollars, and the findings negative any fraudulent intent on the part of defendant.

Subsequently to the order setting apart the homestead, the usual proceedings for a distribution of the residue of the estate were had, of which due notice was given, and in which proceedings it affirmatively appeared that the homestead had been set apart, etc. The residue of such estate was, by decree of April 7, 1879, duly distributed.

On the 22d of February, 1883, the plaintiffs moved the Superior Court, as the successor of the former Probate Court, to set aside the decree of homestead upon the same grounds- substantially as urged here, which motion after a hearing was denied by the court, whereupon this action was instituted.