In re Estate of Gregory

BELCHER, C. James Gregory died testate in the county of Placer on January 24, 1877, being at the time a resident of said county and leaving an estate therein, consisting of real and personal property. The will of said deceased was duly admitted [484], to probate, and letters testamentary were issued to Mary Gregory, named in. the will as sole executrix thereof, and such letters remained in full force and effect until December 1, 1880, when she died. On January 8, 1881, a decree of distribution was made and entered in the matter of the estate, whereby the whole of the estate was distributed to John H. Gregory and John S. Gregory.

On February 18, 1895, an order of court was made and entered appointing Mary Ann Brind administratrix with the will annexed of the said estate, and on the same day letters of administration were issued to her. On May 3, 1895, the said administratrix, Mary A. Brind, filed a petition, and on October 31, 1895, an amended petition setting forth, among other things, that between the times of the death of Mary Gregory, executrix, and the appointment of the petitioner as administratrix, there was a vacancy in the administration of the said estate; that the decree of distribution of January 8, 1881, was made without any petition therefor or notice thereof, and is void on its face and not conformable to law or justice; that the petitioner and three other persons named were pretermitted children of said James Gregory, and were entitled to his estate, or a portion thereof; and that the said decree of January 8, 1881, was beyond the jurisdiction of the court and in contravention of the constitution of the United States and of this state, in that it deprived the said pretermitted children of their property without due process of law. Wherefore the petitioner prayed that the said decree of January 8th be vacated and set aside.

J. H. Gregory, J. S. Gregory, and five other parties interested answered the petition, denying that the said decree of distribution was made without any petition therefor or notice thereof, or is void" on its face or not conformable to law or justice, and averring that no appeal was ever taken from the said decree, and that the same is conclusive as to the rights of the petitioner, and the cause of action set forth in the petition is barred by the provisions of sections 1666 and 1908 of the Code of Civil Procedure.

The matter came on regularly to be heard before the court upon the issues presented by the petition and answer, and after hearing the evidence and the argument of counsel it was, on