MARSHALL, J.
Ejectment to recover twenty acres of land in Clinton county. The petition is in the usual form and the answer is a general denial. The facts are these: In December, 1884, William Hanger died testate, seized of certain lands, those here involved included, and certain personal property. He devised the personal property to his wife, Christina, absolutely, and gave her a life estate, without power of disposal, in the real property, and the remainder in the real estate he bequeathed to his two sons, Andrew Dickson Hauger (the defendant) and Jonathan Hauger in fee simple absolute, in equal parts. He appointed his wife executrix, without bond. Then he directed that after the. debts were paid his wife should pay to his children “in the order named each of the following specific legacies, to William H. Hauger, one hundred and fifty dollars, Amanda Myers one dollar, Luranna Adaline Smith one dollar, Nancy A. M. Hauger one dollar, Isaac Leonidas Hauger one dollar, and to Aaron Lewis Hauger one dollar.” s
The executrix administered the estate, and, after proper notice, made final settlement on the 3d of February, 1894, on which it appeared that there was a balance due the estate of $121.68, and the court finding that all the debts, costs and expenses had been fully paid, ordered the said balance to be paid to the widow as the legatee of the personal property, and the 16th of February, 1894, entered final judgment discharging the executrix.
On the 15th of February, 1895, William H. Hauger, one of the specific legatees, presented a petition to the probate court of Clinton county, in which he represented to that court that the executrix had paid all the debts of the estate but had [441]*441not executed tbe will, in that sbe bad not paid him the specific legacy of one hundred and fifty dollars, bequeathed* to him by his father, and further alleging: “That on the-day of-, 1894, the said Christina Hauger made an alleged final settlement of her accounts as such executrix, this legatee interposing no objection because a verbal agreement for the payment of said legacy had been entered into between plaintiff and defendants” (the petition was entitled William H. Hauger, plaintiff, v. Christina Hauger, Andrew D. Hauger and Jonathan Hauger, defendants), which defendants had refused to carry out, and asking the court “to disregard said settlement so far as the same is held to be a final settlement of said estate and that the said executrix be required to execute said will specifically by paying plaintiff the said legacy of one hundred and fifty dollars with interest on said sum at the rate of 6 per cent per annum and for such purpose to sell any part of said real estate devised to defendants as aforesaid and for other relief.” The persons named as defendants were served by the sheriff on December 6th, 1894, with a copy of the petition and a notice from the person named as the plaintiff and signed by his attorney, that he would present the petition to the probate court of Clinton county at its February term to begin on the second Monday in February, 1895.
It does not appear from anything in the record in this case whether the so-called defendants appeared in the probate court as so required or not, but on the 15th of February, 1895, that court entered an order reciting the filing of the petition, and stating that it had been proved to the satisfaction of the comt that notice of the application had been given “to the above named defendants,” and that, “the court being-satisfied” (it does not state that any proofs were adduced or evidence heard — just “satisfied”) “that the settlement as made by the executrix as and for a final settlement was made by her and acquiesced in by all the parties hereto under a misapprehension of fact” (it is not stated what that fact was which the [442]*442parties misapprehended), the court finds that the said William H. Hauger under and by virtue of said will is entitled to the sum of one hundred and fifty dollars, and that the same dominates the residuary devise or legacy given by the terms of said will to the defendants, and that the legacy aforesaid had never been paid in whole or in part,” and then the court found that this legacy should have been paid one year after the grant of the letters, and that it was demanded and so plaintiff is entitled to interest from that date, and thereupon the court ordered the executrix (whom the court had discharged a year before) to pay William H. Hauger, two hundred and thirty-one dollars, “and that if necessary she shall sell any part of the property, personal or real, for such purpose, and that she report her proceeding hereunder for approval.”
This order must have been a most disastrous shock to the mind of the executrix, for it appears from the further order entered by the same probate court on the 30th of May, 1895, that on the same day it entered its first order (February 15th, 1895), the same probate court adjudged the said Christina Hauger “¿o be a person of unsound mind and incapable of managing her' own affairs, leaving a pari of said will un-executed” and therefore, “to the end that said will may be duly and fully executed and that said estate may be fully and duly executed and legally disposed of,” the court appointed E. 0. Hall administrator d. b. n. c. t. a. with full power “to receive and dispose of said property according to law,” etc. Hall sold the property here involved to pay this legacy, to the plaintiffs in this action for $310, the probate court approved the sale, and Hall executed and delivered to the plaintiffs herein a deed to the land, and this is plaintiffs’ only title to the property.
The defendant refused to surrender the land and plaintiffs instituted this action. The case was tried in the circuit court without a jury, neither party asked any instructions and [443]*443the court gave none, and upon these undisputed facts the circuit court entered judgment for defendant, and plaintiffs have brought the case to this court.
I.
This case is sm generis, without a precedent or parallel in the books. The specific legatee stood by and consented to a final settlement and distribution of the estate without demanding his legacy, because of a yerbal agreement between himself and the other legatees that they would pay his legacy. A year afterwards he gaye the other legatees notice that on a day certain he would file a bill in equity in the probate court setting out these facts, and would ask the probate court to “disregard” the final settlement and order the real estate devised to defendants sold to pay his legacy. At the time named he filed his bill, and that court found that the final settlement was made and acquiesced in by all the parties “under a misapprehension of fact,” and so entered judgment for the specific legatee for the amount of his legacy with interest thereon beginning to run one year after the grant of the letters testamentary and ordered the executrix, whom it had discharged more than a year preyiously, to pay the judgment and if necessary to sell the real and personal property lately being but then fully administered upon to pay the same. Thus without attempting to set aside the final judgment, upon a petition to “disregard” it, because other persons had not carried out a “yerbal agreement” with him when he stood by and saw the final judgment entered without objection, the probate court entered a decree that the final settlement had been made and acquiesced in “under a misapprehension of fact,” awarded the petitioner a judgment and ordered the personal and real property of the closed estate sold to pay the judgment.
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MARSHALL, J.
Ejectment to recover twenty acres of land in Clinton county. The petition is in the usual form and the answer is a general denial. The facts are these: In December, 1884, William Hanger died testate, seized of certain lands, those here involved included, and certain personal property. He devised the personal property to his wife, Christina, absolutely, and gave her a life estate, without power of disposal, in the real property, and the remainder in the real estate he bequeathed to his two sons, Andrew Dickson Hauger (the defendant) and Jonathan Hauger in fee simple absolute, in equal parts. He appointed his wife executrix, without bond. Then he directed that after the. debts were paid his wife should pay to his children “in the order named each of the following specific legacies, to William H. Hauger, one hundred and fifty dollars, Amanda Myers one dollar, Luranna Adaline Smith one dollar, Nancy A. M. Hauger one dollar, Isaac Leonidas Hauger one dollar, and to Aaron Lewis Hauger one dollar.” s
The executrix administered the estate, and, after proper notice, made final settlement on the 3d of February, 1894, on which it appeared that there was a balance due the estate of $121.68, and the court finding that all the debts, costs and expenses had been fully paid, ordered the said balance to be paid to the widow as the legatee of the personal property, and the 16th of February, 1894, entered final judgment discharging the executrix.
On the 15th of February, 1895, William H. Hauger, one of the specific legatees, presented a petition to the probate court of Clinton county, in which he represented to that court that the executrix had paid all the debts of the estate but had [441]*441not executed tbe will, in that sbe bad not paid him the specific legacy of one hundred and fifty dollars, bequeathed* to him by his father, and further alleging: “That on the-day of-, 1894, the said Christina Hauger made an alleged final settlement of her accounts as such executrix, this legatee interposing no objection because a verbal agreement for the payment of said legacy had been entered into between plaintiff and defendants” (the petition was entitled William H. Hauger, plaintiff, v. Christina Hauger, Andrew D. Hauger and Jonathan Hauger, defendants), which defendants had refused to carry out, and asking the court “to disregard said settlement so far as the same is held to be a final settlement of said estate and that the said executrix be required to execute said will specifically by paying plaintiff the said legacy of one hundred and fifty dollars with interest on said sum at the rate of 6 per cent per annum and for such purpose to sell any part of said real estate devised to defendants as aforesaid and for other relief.” The persons named as defendants were served by the sheriff on December 6th, 1894, with a copy of the petition and a notice from the person named as the plaintiff and signed by his attorney, that he would present the petition to the probate court of Clinton county at its February term to begin on the second Monday in February, 1895.
It does not appear from anything in the record in this case whether the so-called defendants appeared in the probate court as so required or not, but on the 15th of February, 1895, that court entered an order reciting the filing of the petition, and stating that it had been proved to the satisfaction of the comt that notice of the application had been given “to the above named defendants,” and that, “the court being-satisfied” (it does not state that any proofs were adduced or evidence heard — just “satisfied”) “that the settlement as made by the executrix as and for a final settlement was made by her and acquiesced in by all the parties hereto under a misapprehension of fact” (it is not stated what that fact was which the [442]*442parties misapprehended), the court finds that the said William H. Hauger under and by virtue of said will is entitled to the sum of one hundred and fifty dollars, and that the same dominates the residuary devise or legacy given by the terms of said will to the defendants, and that the legacy aforesaid had never been paid in whole or in part,” and then the court found that this legacy should have been paid one year after the grant of the letters, and that it was demanded and so plaintiff is entitled to interest from that date, and thereupon the court ordered the executrix (whom the court had discharged a year before) to pay William H. Hauger, two hundred and thirty-one dollars, “and that if necessary she shall sell any part of the property, personal or real, for such purpose, and that she report her proceeding hereunder for approval.”
This order must have been a most disastrous shock to the mind of the executrix, for it appears from the further order entered by the same probate court on the 30th of May, 1895, that on the same day it entered its first order (February 15th, 1895), the same probate court adjudged the said Christina Hauger “¿o be a person of unsound mind and incapable of managing her' own affairs, leaving a pari of said will un-executed” and therefore, “to the end that said will may be duly and fully executed and that said estate may be fully and duly executed and legally disposed of,” the court appointed E. 0. Hall administrator d. b. n. c. t. a. with full power “to receive and dispose of said property according to law,” etc. Hall sold the property here involved to pay this legacy, to the plaintiffs in this action for $310, the probate court approved the sale, and Hall executed and delivered to the plaintiffs herein a deed to the land, and this is plaintiffs’ only title to the property.
The defendant refused to surrender the land and plaintiffs instituted this action. The case was tried in the circuit court without a jury, neither party asked any instructions and [443]*443the court gave none, and upon these undisputed facts the circuit court entered judgment for defendant, and plaintiffs have brought the case to this court.
I.
This case is sm generis, without a precedent or parallel in the books. The specific legatee stood by and consented to a final settlement and distribution of the estate without demanding his legacy, because of a yerbal agreement between himself and the other legatees that they would pay his legacy. A year afterwards he gaye the other legatees notice that on a day certain he would file a bill in equity in the probate court setting out these facts, and would ask the probate court to “disregard” the final settlement and order the real estate devised to defendants sold to pay his legacy. At the time named he filed his bill, and that court found that the final settlement was made and acquiesced in by all the parties “under a misapprehension of fact,” and so entered judgment for the specific legatee for the amount of his legacy with interest thereon beginning to run one year after the grant of the letters testamentary and ordered the executrix, whom it had discharged more than a year preyiously, to pay the judgment and if necessary to sell the real and personal property lately being but then fully administered upon to pay the same. Thus without attempting to set aside the final judgment, upon a petition to “disregard” it, because other persons had not carried out a “yerbal agreement” with him when he stood by and saw the final judgment entered without objection, the probate court entered a decree that the final settlement had been made and acquiesced in “under a misapprehension of fact,” awarded the petitioner a judgment and ordered the personal and real property of the closed estate sold to pay the judgment. This would be bad enough, but when it appears that the other legatees were only attempted to be brought into court by notice and not by summons as the statute requires a defendant [444]*444to be brought into court, and when we observe that on the same day the probate court entered its decree in equity, it also adjudged the principal “defendant” to be “a person of unsound mind and incapable of managing ber own affairs, leaving a part of said will unexecuted,” and without removing her, a few days thereafter appointed another person administrator d. b. n. c. t. a., the performance becomes Shakespearian and may be properly designated “a comedy of errors.”
A judgment of a probate court finally settling and distributing an estate and discharging an executor is a final judgment, which, after the expiration of the term at which it is entered, can not be set aside by that court at all, and not by any other court, except in a direct proceeding, in equity, on the ground of fraud perpetrated upon the court in the very act of procuring the judgment, and this implies that the parties shall have been brought into court by a summons and not by a mere notice from one to the other. [Garner v. Tucker, 61 Mo. l. c. 431; Sheetz v. Kirtley, 62 Mo. 417; Miller v. Major, 67 Mo. l. c. 248; State ex rel. v. Gray, 106 Mo. l. c. 533; McClanahan v. West, 100 Mo. l. c. 320; Nelson v. Barnett, 123 Mo. l. c. 570; Baldwin v. Davidson, 139 Mo. l. c. 125; Howell v. Jump, 140 Mo. 441.]
“After the time has elapsed for the allowance of claims against an estate and when all demands and charges of every kind have been settled, and the sole duty remains upon the part of the executor to pay the legacies, or of the administrator to make distribution, and he fails so to do, an action, may be maintained against him for this breach of duty without waiting for an order of distribution by the probate court.” [Clarke v. Sinks, 144 Mo. l. c. 453.] But even this rule will not avail in this case, because the probate court made an order of distribution, which the specific legatee consented to for reasons which then seemed sufficient to him. This'order was not excepted to or appealed from, and stands unimpeached in any proper proceeding, and is final and conclusive upon all persons [445]*445interested in tbe estate. Tbe action of tbe probate court was not only erroneous in bolding that tbe final settlement was made and acquiesced in by tbe parties “under a misapprehension of fact” when tbe very petition upon wbicb tbe court was acting did not so complain or intimate, but on tbe contrary expressly stated it was founded upon “a verbal agreement” between tbe legatees wbicb bad not been lived up to by them, but tbat action was wholly coram non judice, because it acquired no jurisdiction over tbe parties by mere notice from one to tbe other, and it bad no jurisdiction over tbe subject-matter and therefore bad not “a constitutional power to commit error.” Tbe sale at wbicb tbe plaintiffs acquired apparent title was void and tbe deed under wbicb they claim is a nullity.
Tbe judgment of tbe circuit court is right and is affirmed.
All concur.