Asher

I dissent.

It is clear that the Idaho probate court erroneously interpreted the fifth provision of decedent’s will, and thereby deprived complainant of a part of the residuary estate. 1 Ida.Code, 1932, § 5-905, provides for relief from judgments as follows :

“ * * * The court may * * * in its discretion, after notice to the adverse *320 party * * * relieve' a party * * * from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and whenever, for any reason satisfactory to the court or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order or proceeding complained of was taken, the court, or the judge thereof in vacation, may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term. * * * ”

Although this section is applicable to probate courts, which have no terms, application for relief must be made within 6 months from the time the order was made. Chandler v. Probate Court, 26 Idaho 173 , 141 P. 635 ; Connolly v. Probate Court, 25 Idaho 35 , 136 P. 205 . Here, complainant…

This action was brought by appellee Lulah J. Bone, a citizen of the state of Illinois, hereinafter called the “complainant”, against H. E. Worstell, executor of the estate of Stephen V. Osburn, a citizen of Idaho, the Aetna Casualty & Surety Company, a Connecticut corporation, the surety upon the executor’s bond, and the Mineral Point Mining Company, an Idaho corporation.

In the complaint it was charged that Lulah J. Bone was deprived of a one-seventh interest in the residue of the estate of Stephen V. Osburn by what is claimed to be extrinsic fraud. The fraud claimed is that of procuring an erroneous decree of distribution of the property of said estate by causing an erroneous construction to be placed upon the terms of the will of Stephen V. Osburn by the probate court of Shoshone County, State of Idaho, sitting in probate in the matter of said estate, and the making of an undervaluation of the estate. The alleged fraudulent conduct was charged against the executor Worstell and Walter G. Asher who, it was alleged, had been appointed by “all or substantially all” of the heirs and legatees of Stephen V. Os-burn except complainant, and Georgia Mullaney, Nell Osburn Schwarberg,…