Proctor v. Dicklow

*124 The opinion -of the court was delivered by

Johnston, J. :

While the administration of the estate was still pending in the probate court, Joseph Dicklow brought this action in the district court against the administratrix and the sureties upon her bond, charging her with maladministration, asking for an accounting, and that the release under which she proposed to claim his alleged interest in the estate should be canceled and set aside. This 'was done, too, with full knowledge of the condition of the estate, of the wrongs alleged to have been committed by the administratrix, and after he had learned that a settlement was to be made at the succeeding term of the probate court. Although he had legal notice of the final settlement and distribution, he ignored the probate court, and without appearance or objection allowed the final settlement to be made, the estate distributed, and the final decree entered discharging the administratrix and releasing the sureties on the bond from further liability. No appeal was taken from the determination of the probate court, nor were any supplemental pleadings filed in the district court after the settlement and distribution were made. We readily agree with the district court that he was concluded by the adjudication in the probate court. He was not a stranger to those proceedings, but was brought in by the notice, and is necessarily bound by the decision to the same extent as any other claimant, distributee, or interested party.

*125 1. Jurisdiction of probate court. *124 In this state probate courts are given complete jurisdiction of all matters connected with the settlement of the estates of deceased persons, and specific authority *125 is .conferred upon them to settle the accounts of administrators and to order the distribution of estates. (¶ ¶ 2116, 2952, Gen. Stat. 1889.) Provision is also made for taking an appeal from an order of the court making distribution of an estate. That court having jurisdiction to make distribution of the estate, it follows as a necessary incident to the jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate. The jurisdiction being ample, it must be held that Joseph Dicklow has had his day in court, and that the adjudication there made is binding upon him as against a collateral attack. (Davis v. Hagler, 40 Kan. 187; Blake v. Butler, 10 R. I. 133; Dundas’s Estate, 73 Pa. St. 474; Graham et al. v. Abercrombie et al., 8 Ala. 552; Ward and wife v. Congregational Church, 66 Vt. 490; Carter’s Appeal from Probate, 59 Conn. 577; Case of Broderick’s Will, 21 Wall. 503.) The final settlement and closing up of an estate is a judicial determination to which all interested are summoned, and by which all having a day in court are concluded. (Musick v. Beebe, Adm’r, 17 Kan. 47.) It is in the nature of a final judgment that the estate is fully administered, intended as a protection for the administrator and his sureties, and is ordinarily conclusive and final, unless vacated by appeal, impeached for fraud, or set aside by direct proceedings brought for that purpose.

Although the estate was unsettled, the plaintiff undertook to wrest the matter from the jurisdiction of the probate court at a time when that court had ample jurisdiction over the administratrix and the estate, and to have determined the questions which he undertook to raise by his proceeding in the district court.

*126 “In cases of this kind, where the administrator is still acting, and the estate is not settled, and the probate court has complete and ample jurisdiction over the administrator and over the estate, actions in other jurisdictions, against the administrator and his sureties on the administrator’s bond should not be encouraged.” ( Stratton v. McCandless, 27 Kan. 306.)

2. Jurisdiction of district court. It is true that the district court has jurisdicton of some matters relating to the estates of deceased persons, but it is an equitable jurisdiction, not to be exercised where the plaintiff has a plain and adequate remedy by an ordinary proceeding in a tribunal especially provided by statute, and it is a well-established rule that, in cases where two courts have concurrent jurisdiction, the court which first takes cognizance of the cause retains it to the exclusion of-the other. (Shoemaker v. Brown, 10 Kan. 383; Smith v. The Eureka Bank, 24 id. 528; Kothman v. Markson, 34 id. 542; Gafford, Guardian, v. Dickinson, Adm’r, 37 id. 291.) The adjudication of the probate court in a matter within its jurisdiction is as conclusive upon the parties as is the judgment of the district court, and it should be allowed to stand unless set aside upon appeal or some direct attack. No special equitable considerations were shown which justified taking the matter into the district court, or warranted interference with the action of the probate court. The plaintiff, with legal notice and actual knowledge that a settlement and distribution were about to be made, could not safely ignore the proceedings in the probate court. The matters of which he complains have been finally determined in that court, and he is bound by the adjudication.

Judgment affirmed.

All the Justices concurring.