Plaintiff and defendant, John C. Joor, are sons of one P. Joor, deceased, and were co-executors of his estate. Plaintiff's petition alleges that a note for $3,000, secured by a chattel mortgage, was executed by defendants, husband and wife, and delivered to the decedent; that P. Joor died on August 19, 1931, his will was admitted to probate in Story *Page 871 County, Iowa, but the note was not listed as an asset of the estate; that under the will plaintiff is entitled to one half of the amount due on the note, and the defendant John C. Joor is entitled to a credit of one half of the amount due. A copy of the will is attached to the petition, and, throughout the petition, it is asserted that plaintiff's ownership of the note arises by virtue of the provisions of the last will and testament of P. Joor, deceased. Plaintiff prays for judgment on the note and foreclosure of the mortgage.
In the defendants' answer, it is alleged that, if the note was or is in existence, it constituted property of P. Joor at the time of his death, but was not inventoried, and no claim was based thereon in the estate; that plaintiff, as one of the co-executors of the estate, under oath executed an inventory and a final report wherein plaintiff asserted that all property belonging to the estate and coming into the hands of the executors had been inventoried and accounted for; that, upon presentation of the final report, the same was approved and the estate closed; that the proceedings in the probate court constitute an adjudication against the contentions of the plaintiff and the plaintiff is now barred and estopped from claiming any interest in the indebtedness alleged in the petition; that plaintiff failed to attack the adjudication by a showing that the property was accidentally or fraudulently withheld from the estate, and is not now entitled to pursue the alleged property or prove any interest therein.
At the trial, the evidence showed that the plaintiff and the defendant John C. Joor were co-executors of the estate. The inventory, filed by them as such executors, was introduced in evidence. It was verified and did not list the note as an asset of the estate. The final report, filed by said executors, was introduced in evidence. It was signed and verified by both of the executors. It recites, "All property belonging to said estate, and which has come into their hands as executors has been disposed of as directed by the Court, and the estate is now ready for final settlement and distribution." The order approving the final report was introduced in evidence. It recites that the report came on for hearing after due notice to all parties interested in the estate. The adjudication of the court is as follows: "Wherefore, it is considered by the court that said *Page 872 report is true and correct, and the same is hereby approved, the executor is discharged and his bond exonerated."
There is no allegation in the petition that the defendant was guilty of any fraud as against the plaintiff in failing to inventory or assert the note as an asset of the estate. There is no claim of mistake. The plaintiff testified to knowledge of the existence of the note at the time he executed the inventory and the final report, in each of which instruments the note is not included, and he stated under oath in the final report that all of the property of the estate in the hands of the executors had been fully accounted for.
The trial court found and determined that the plaintiff neither alleged nor proved any fraud, mistake or omission in pursuing the controversy in the probate court, that the estate of P. Joor was administered and the evidence affirmatively shows that the plaintiff, who was a co-executor in said estate, had knowledge of the existence of said alleged note long prior to the settlement of the estate, and failed to show to the court any equitable grounds for relief as provided by statute; that, by reason of the report, plaintiff's receipt for his distributive share, and the order of final discharge in said estate, the plaintiff is estopped from claiming any relief in equity concerning the alleged asset of said estate, is not entitled to a decree, and the cause was dismissed. Other matters are determined in the decree which it is unnecessary for us to discuss or decide. Plaintiff appeals from such decree.
Section 12049 of the Code provides as follows:
"Mistakes in settlements may be corrected in the probate court at any time before his final settlement and discharge, and after that time by equitable proceedings, on showing such grounds as will justify the interference of the court."
This statute has been repeatedly construed by this court and, under the rules adopted by us in such construction, it appears that the trial court correctly decided this case.
As above pointed out, plaintiff asserts ownership in a one-half interest in the note by virtue of the fact that the note constituted property of P. Joor at the time of his decease, that, under the will of said decedent, plaintiff was given a one-half interest in the estate, that the estate has been fully administered and, accordingly, plaintiff's one-half interest in the note *Page 873 is not subject to any debts of the decedent or costs of administration. Plaintiff bases his claim herein squarely on the proposition that he is a legatee under the will of P. Joor, deceased, that this property was an asset of the estate and that his title should be enforced by a court of equity on such basis. The contentions now made are in direct opposition to the adjudication in the probate proceedings. It was there determined that all property belonging to the estate has been fully accounted for. This note was not reported as property belonging to the estate. The adjudication on the final report was that such report is true and correct. The claim now made is that the report was neither true nor correct. We are of the opinion that, before the claims of the plaintiff asserted herein could be decided in his favor, it was necessary to attack the adjudication in the probate proceedings and, since this was not done, the trial court correctly decided this case.
In the case of Becker v. Becker Bros., 202 Iowa 7, 11,209 N.W. 447, 450, we state:
"It is likewise true that the final report of an executor which has been approved, and the executor discharged, will be set aside only upon a clear and satisfactory showing of fraud, mistake, or other equitable grounds therefor. Patterson v. Bell, 25 Iowa 149; In re Estate of Douglas, 140 Iowa 603 [117 N.W. 982]; Tucker v. Stewart, 121 Iowa 714 [97 N.W. 148]; Read v. Howe, 39 Iowa 553; Daniels v. Smith, 58 Iowa 577 [12 N.W. 599]."
Again, in the case of Bradbury v. Wells, 138 Iowa 673, 677,115 N.W. 880, 882, 16 L.R.A., N.S., 240, we state:
"The matter complained of must be something extrinsic orcollateral to the matter tried upon the original hearing, and not a fraud or mistake in the very matter on which the judgment was entered or order made. Tucker v. Stewart, 121 Iowa [714] 716 [97 N.W. 148]; Graves v. Graves, 132 Iowa 199 [109 N.W. 707, 10 L.R.A., N.S., 216, 10 Ann. Cas. 1104]; United States v. Throckmorton, 98 U.S. 61 (25 L. Ed. 93)." (Italics ours.)
In the case of Murphy v. Hahn, 208 Iowa 698, 707, 223 N.W. 756,761, we state: *Page 874
"Everything which might have been litigated as incidental or essentially connected with this subject-matter (the money in the hands of the administrator) must be regarded as disposed of by the final order of discharge. Tucker v. Stewart, 121 Iowa 714 [97 N.W. 148]; Bradbury v. Wells, supra; Conrad v. Hopkins, 195 Iowa 1162 [193 N.W. 437]. While it is true that fraud may vitiate a final settlement of an estate, yet the fraud that will vitiate it must be extrinsic or collateral to the matter directly involved in the final settlement or adjudication. United States v. Throckmorton, 98 U.S. 61, 65; Bradbury v. Wells, supra; Tucker v. Stewart, supra; Conrad v. Hopkins, supra; Hewitt v. Blaise,202 Iowa 1114 [211 N.W. 481]; Pico v. Cohn, 91 Cal. 129 (25 Am. St. 159) [25 P. 970, 27 P. 537, 13 L.R.A. 336]; Croghan v. Umplebaugh, 179 Iowa 1187 [162 N.W. 596]; Sudbury v. Sudbury,179 Iowa 1039 [162 N.W. 209]; Aschan v. McDermott, 164 Iowa 750 [145 N.W. 524]; Sullivan v. Herrick, 161 Iowa 148 [140 N.W. 359]; Guth v. Bell, 153 Iowa 511 [133 N.W. 883, 42 L.R.A. (N.S.) 692, Ann. Cas. 1913E 142]; Mengel v. Mengel, 145 Iowa 737 [120 N.W. 72, 122 N.W. 899]; Kwentsky v. Sirovy, 142 Iowa 385 [121 N.W. 27]; Richards v. Moran, 137 Iowa 220 [114 N.W. 1035]; Tollefson v. Tollefson, 137 Iowa 151 [114 N.W. 631]; Graves v. Graves,132 Iowa 199 [109 N.W. 707, 10 L.R.A. (N.S.) 216, 10 Ann. Cas. 1104]." (Italics ours.)
In the last case quoted from, the action was in equity to require the defendants to make an accounting of certain property which should have been reported in an estate, but was not. In disposing of the case, we state, at page 708 of 208 Iowa,223 N.W., at page 762, as follows:
"Under the record in this case, it is manifest that the final settlement and discharge of the brother, as administrator, constituted an adjudication; that the appellants had a trial, or were in no way prevented from having a trial, as to who and in what proportions they were entitled to the money in the hands of the administrator, as shown by his inventory and final report; and that the facts upon which the appellants are now relying as constituting fraud are not extrinsic or collateral fraud, but fraud intrinsic in character, and such as inheres in theadjudication rendered in the order of discharge. William J. Hahn, as an officer of the court, which had full and complete *Page 875 jurisdiction, has accounted for all of the money in his hands as such officer, and as per the order of the court. Since he has so accounted, and since the appellants have not shown any extrinsic or collateral fraud which will vitiate the adjudication, said adjudication is final. If, under the record, the adjudication could be set aside, then, indeed, judgments of courts of record avail little or nothing." (Italics ours.)
Another case which is quite similar is that of Tucker v. Stewart, 121 Iowa 714, 718, 97 N.W. 148, 149, wherein an effort was made to compel an administrator to account for interest which should have been included in his final report, but was not. We state:
"Now this interest charge is only incidental to the accounting of the moneys of the estate — an increase of the funds themselves — and, when the final report shows how long these have been in the hands of the administrator, those interested in the estate are advised of facts which, followed up, would inevitably lead to the discovery whether any liability therefor had attached. If, notwithstanding this, they consent to his discharge, it would seem such consent ought to be deemed a waiver of all claim to such increment. In such a case it is incidental to, and connected with, the very items with which the administrator is charged, and hence must be regarded asadjudicated. If this were not the rule, there would be no stability in final settlements, as they might be set aside on the subsequent discovery that the officer, in handling the moneys, had derived from the use of any item some benefit not expressly stated in the account." (Italics ours.)
It seems to us and we hold that the adjudication in the probate proceedings was that all property belonging to the estate in the hands of the executors had been properly administered pursuant tothe orders of the probate court. The contentions now made by plaintiff herein are directly opposed to such adjudication. For plaintiff to assert such contentions it was necessary to attack the adjudication on the basis of fraud or mistake. This was not done. Accordingly, we hold that the trial court correctly decided that the plaintiff failed to present to the court any equitable grounds for relief, and that the petition of the plaintiff was properly dismissed. The decree is affirmed. — Affirmed. *Page 876
HAMILTON, C.J., and OLIVER, HALE, and MITCHELL, JJ., concur.