In re the Estate of Grider

Fox, J. H. C. Grider died May 29, 1872, seised of the lands involved in this proceeding. He left a widow, Sarah, or Sallie, Grider, and three children, N. G. Grider, T. S. Grider, and E. E. Grider, then aged, respectively, fourteen, twelve, and eight years. He also left a will, making his widow sole devisee, and wholly omitting all provision for or mention of his children, or of either of them. On or about the twenty-fourth day of June, 1872, said will was admitted to probate by the probate court of the county of Lake, and letters testamentary issued to said Sallie Grider. Administration of the estate has never been closed.

The present proceeding is one inaugurated in the superior court of that county, sitting in probate, by petition filed by said children under section 1664 of the Code of Civil Procedure, under which such proceedings have been had as that R. D. Merritt, the respondent herein, appeared and set up a claim that he was the sole owner in fee of the real estate described in the record, the same having been acquired through a chain of mesne conveyances from Sarah Grider down to himself, and a decree of partial distribution of said estate of H. C. Grider, made to him as successor in interest of said Sarah Grider by the said probate court on the twenty-second day of December, 1875. Upon this claim issue was [573]joined and a trial had, resulting in a judgment in favor of said Merritt, from which, and from an order denying a new trial, this appeal was taken.

The court finds the facts in regard to the death of said Grider, his seisin in the land, his survivors, the making and probate of the will, and the terms thereof, as hereinabove stated. It fails to find whether or not said Sarah Grider ever conveyed her interest, or any interest, in the real estate described in the complaint to any person, or whether or not there is any conveyance, or chain of conveyances, connecting the title claimed by this respondent with the said Grider title. But it does find,' and recites, in the fifth finding, that on the 22d of December, 1875, in the probate court, and on the petition of said respondent, a judgment was entered in the matter of said estate, which judgment it sets out in hsec verba. That judgment, after reciting the jurisdictional facts, some of which are not otherwise proved in the record, proceeds to adjudge and determine that the petitioner, R. D. Merritt, “has succeeded to all the rights, title, and interest of said Sallie Grider, the sole devisee of the last will and testament of said H. 0. Grider, deceased, and is entitled to the share of said estate in his petition and hereinafter described.” And it further proceeds to decree that the real estate described in the petition, describing the same (and being the same described in the complaint in this cause), “be distributed to the said R. D. Merritt, upon his giving bond,” etc. And finally adjudges: “ It is adjudged and decreed that the estate hereinbefore described is hereby finally distributed and set apart to said petitioner, R. D. Merritt, free and clear from further administration in said estate.” The court further finds that the plaintiffs herein have never had set apart or distributed to them any part or parcel of said estate. In the sixth finding, after reciting the will, the court finds “that the said petitioners, appellants herein, are not, nor is either of them, now, or at