My reasons for dissenting from the majority opinion may be skeletonized as follows: Plaintiff's contentions were that defendant owed the note in suit to plaintiff and defendant, the sole beneficiaries of the estate. The majority opinion says, "For plaintiff to assert such contentions it was necessary to attack the adjudication on the basis of fraud or mistake." The "adjudication" was the probate order approving the final report. As their reason for laying down what is quoted above the majority say that plaintiff's contentions were directly opposed to the "adjudication," that is, directly opposed to the probate order. Seemingly, in saying this the majority misconceives what issues and matters the probate order adjudicated. It was entered in a hearing in which the adverse parties were on the one side the executors, on the other side the beneficiaries of the estate. The only adverse interests involved were those existing between the executors as executors and the beneficiaries as beneficiaries. No issue was before the court as to which the executors and the defendant debtor of the estate were adverse parties. There was nothing asked by any party to have adjudicated respecting defendant's liability to the estate or to the beneficiaries then holding the note he owed. Yet the majority has it in mind that in the order it was adjudicated that defendant was not liable after the order was entered. What the majority by implication puts into the order would have expressly appeared, instead of impliedly, had the probate court written into the order a provision to the effect that from and after entry of the order defendant's liability shall cease on any note or mortgage owing the estate that may have been turned over in kind to the beneficiaries. Possibly the majority might admit there was no issue before the court that would have warranted the court in expressly so adjudging. Nevertheless the opinion interpolates such a provision into the decree, inferentially. I fail to see any earmarks of reasonableness in the accomplishment. The decretal portion of the order was that the estate had been fully administered. This determined all issues that were before the court, and accorded with the facts. The debts and any specific legacies had been paid and the remaining *Page 877 assets were in the hands of the proper beneficiaries including the note and mortgage that they had taken over in kind. This taking over was a proper incident to the closing of the estate. No court order was essential in the sense that there were any adverse interests to be determined by an order. At most an order would have been but a recordation of the beneficiaries' election to take the assets in kind. The beneficiaries' respective shares in the note and mortgage vested in them instanter upon the death of the testator. It is the mere legal title that passes to the executor and distribution by him gives the beneficiaries no new title. It only ascertains the property to which the title attaches. Christie v. C.R.I. P. Ry. Co., 104 Iowa 707,74 N.W. 697. The agreement of division of the note and mortgage between the beneficiaries was valid. Douglas v. Albrecht, 130 Iowa 132,106 N.W. 354. The beneficiaries having so agreed the executors had no further right to administer upon the note and mortgage. Their right to make claim thereon being nonexistent the executors could not have made an issue, on the hearing, against defendant with respect to the note. Heinz v. Vawter, 221 Iowa 714,266 N.W. 486. That the probate order adjudicated nothing more than that the estate had been fully administered is made clear if one envisions what would have been the reforming in equity, mentioned as a sine qua non by the majority. The complaint would have been that the final report and order in probate had omitted mentioning that in closing the estate a portion of the assets had been turned over in kind to the beneficiaries. In event the equity court had not refused to act at all because of the immateriality of the thing complained of, the most it could have done would have been to incumber the record by inserting the incidental fact set out in the complaint. But after being inserted that fact would in no manner affect the order as originally made. It would still remain and be the same adjudication upon the one question before the court, whether the estate had been fully administered. After such reforming the relative rights of plaintiff and defendant in the instant case would have been the same as they were on the trial that was had. Being unable to sense that the opinion rests on a sound proposition of law, I would reverse the judgment that was ordered against plaintiff.
*Page 878SAGER, J., concurs in the foregoing dissent.