Feraut v. Sackett

PULLEN, P. J. This appeal is from an order refusing to modify a final decree of distribution in the Estate of Julien Feraut, deceased. To properly understand the controversy it is necessary to recite in some detail the history of the entire proceeding.

In 1933 Ella Shaff Feraut, the wife of Julien Feraut, the father of the parties concerned in this appeal, died testate, making her husband the beneficiary of her estate, which included the property here involved. Julien Feraut qualified as executor, but died June 4, 1935, before the administration of her estate was completed.

During the pendency of the probate proceedings of the Estate of Ella Shaff Feraut, Julien Feraut deeded a part of this realty to his son, Joseph, appellant herein, purporting to convey to him the title in fee, and making no reference to a mortgage which covered the entire tract. This deed was recorded on March 7, 1935, and thereafter on May 22, 1935, filed among the papers in the case of Ella Shaff Feraut. Julien Feraut also signed, but did not acknowledge, a deed to the remaining portion of the real property in question to George I. Lewis, as trustee for Tessie Feraut, his daughter, “subject to all valid mortgages . . . and . . . proceedings of the Probate Court . . . now administering said real property left me by the will of my deceased wife”. This deed was never recorded, but was filed among the papers in the Estate of Ella Shaff Feraut on May 22, 1935.

Julien Feraut died intestate, and Joseph Feraut and Tessie Feraut Sackett, his son and daughter, were appointed administrator and administratrix, respectively, of his estate. [14]Although both applicants qualified, Joseph took no active part in the administration of the estate, and the administration was carried on by the administratrix.

After the death of Julien Feraut, leaving the administration of the estate of his deceased wife uncompleted, Tessie Feraut Sackett petitioned for, and was appointed administratrix with the will annexed of the Estate of Ella Shaft Feraut, deceased. Thereafter she filed an inventory and appraisement of all of the property coming into her hands as administratrix with the will annexed, and included therein the property here in controversy.

Thereafter, the Estate of Ella Shaft Feraut being considerably indebted, Joseph Feraut petitioned the probate court that the administratrix be directed to borrow on the assets of the estate an amount sufficient to pay oft the indebtedness. This petition was denied, but thereafter the real property of the estate, including the property here involved, was by the court directed to be sold. Objections upon technical grounds were urged by Joseph Feraut to the confirmation of sale, and an attempted appeal was taken, but the appeal was dismissed by this court, and the sale confirmed and a deed given. No claim was made, however, that Joseph Feraut had any interest in the real property to be sold.