In re the Estate of Grider

I dissent. As I construe the decree of December 22, 1875, it distributes the whole of the property in controversy to the respondent, and if valid, invests him with the title. No doubt the decree was erroneous, as being founded upon an erroneous conclusion as to the effect of Henry 0. Grider’s will; but never having been reversed on appeal, the decree is binding upon the appellants, if, as to them, the court acquired *579 jurisdiction to make it. As to this, it seems to me that upon collateral attack, in the absence of any evidence to impeach it, the recitals in the decree of due notice, etc., are conclusive.

Works, J.—I'concur in the dissenting opinion of the chief justice.

Rehearing denied.

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…