tion of each. The property to be distributed should be described with reasonable certainty,65 and the decree should award to all parties entitled thereto the specified interests due them.66

§ 1607. Where a Distributee Dies Prior to Distribution.

If any person entitled to a distributive share in the estate has died pending administration, the share of such distributee becomes a part of his estate. Title thereto passes as any similar interest of a decedent would pass, either under his will or under the statute of distribution. Distribution should be made to the personal representative of the decedent distributee.67 It is said, however, that the proper wording of the decree should be to distribute the property to the heirs, next of kin, devisees or legatees, as the case may be, of the deceased distributee, possession, however, to be delivered to his personal representative for the purposes of administration and distribution. The property, however, should be distributed so as to be administered as a part of the estate of the deceased distributee, for it is only in such estate that it can properly be determined who will be entitled to receive the property."s

§ 1608. Distribution Should Be in Kind, if Practicable.

Where each of several persons is entitled to a proportion of the distributive assets of the estate, to make an

64 Banton v. Campbell's Heirs,

2 Dana (32 Ky.) 421.

65 Jones v. Minogue, 29 Ark. 637.

66 King v. Brown, 108 Ala. 68, 18 So. 935; Case v. Clark, 220 Mass. 344, 107 N. E. 936.

67 Grant v. Bodwell, 78 Me. 460, 7 Atl. 12.

See, also, comments in Estate of Wakefield, 136 Cal. 110, 111, 68 Pac. 499; Estate of Edson, 143 Cal. 607, 77 Pac. 451.

68 Estate of Ortiz, 5 Coffey's Prob. (Cal.) 271.

absolutely exact division would require the reduction of the assets into the form of money. This might result in disadvantage to the beneficiaries where the assets are large and consist of securities various in character. The statutes in some jurisdictions require that distribution be made of the specific property or, in other words, “in kind." The exception to this rule, however, is where such a distribution can not be satisfactorily made." And such a statute has been held inapplicable where the assets consisted of notes, accounts, and other choses in action, some of which were good and some of which were of extremely doubtful value.70 Where, however, distribution in kind is practicable and equitable, such distribution is approved."1

§ 1609. Persons and Matters Concluded by the Decree of Distribution.

The decree of distribution determines the rights of the parties named therein to the estate of the decedent, whether under a will or under the statute of distribution, and if any party is dissatisfied therewith he has the remedy by appeal. The decree unless appealed from is a conclusive determination of the matters therein contained and is not subject to collateral attack.72 The general rule is that if a court has jurisdiction of the subject matter and the parties, its judgment can not be collaterally impeached either for errors of law or irregularity in

69 Ward v. Oates, 42 Ala. 225; Rose v. O'Brien, 50 Me. 188; Evans v. Iglehart, 6 G. & J. (Md.) 171; In re Reed's Estate, 82 Pa. St. 428.

70 Waterman v. Alden, 115 Ill. 83, 3 N. E. 505.

71 In re Brook's Estate, 249 Pa. 66, 94 Atl. 478.

72 In re Trescony's Estate, 119 Cal. 568, 51 Pac. 951, 952; Jewell v. Pierce, 120 Cal. 79, 52 Pac. 132; Keith v. Guthrie, 59 Kan, 200, 52 Pac. 435; Greenwood v. Murray, 26 Minn, 259, 2 N. W. 945.

practice. But if a decree of distribution has been inadvertently entered and contains manifest errors of law and mistakes of fact, the probate court, during the same term, upon the application of an interested party and after notice to all persons interested, may modify or correct the decree.74

A decree of distribution after due and legal notice and hearing by the court having jurisdiction of the probate matter is conclusive as to all matters properly included therein, unless modified or set aside by the court entering the decree in the manner prescribed by law or until reversed on appeal.75 It has the force and effect of a

73 McGoon v. Scales, 9 Wall. (U. S.) 23, 19 L. Ed. 545; Bateman v. Miller, 118 Ind. 345, 21 N. E. 292.

74 Appeal of Bergeron (Estate of Cote), 98 Me. 415, 57 Atl. 584.

As to the jurisdiction of the probate court to modify or vacate its decrees, see § 1316.

As to conclusiveness of order of court settling account of or discharging administrator, see § 1390.

The probate court can not set. aside a decree of distribution legally made.-Connolly v. Probate Court, 25 Ida. 35, 136 Pac. 205.

A court of equity has jurisdiction in a proper cause to set aside a final decree of distribution secured and entered by reason of the fraud of the personal representative, provided the action is not barred by the statute of limitations.-Fischer v. Dolwig, 29 N. D. 561, 151 N. W. 431.

75 Burton Machinery Co. v. Davies, 205 Fed. 141; Luscomb v. Fintzelberg, 162 Cal. 433, 123 Pac. 247; Drexler v. Washington Development Co., 172 Cal. 758, 159 Pac. 166; Pigott v. Donovan, 91 Conn. 444, 99 Atl. 1047; Eddy v. Kelly, 72 Minn. 32, 74 N. W. 1020; Einstein v. Strother (Mo. App.), 182 S. W. 122; Stenson v. H. S. Halvorson Co., 28 N. D. 151, Ann. Cas. 1916D, 1289, L. R. A. 1915A, 1179, 147 N. W. 800; In re Evans, 42 Utah 282, 130 Pac. 217, reversing 22 Utah 366, 83 Am. St. Rep. 794, 53 L. R. A. 952, 69 Pac. 913; Sparrow v. Watson, 87 Vt. 366, 89 Atl. 468.

A decree of distribution has the character of a proceeding in rem, being "necessarily conclusive of the matter in controversy for the common safety and repose of mankind."-State v. Blake, 69 Conn. 64, 36 Atl. 1019.

judgment and is not subject to collateral attack. It is conclusive as against all parties duly notified and who had the right and the opportunity to be heard." It is conclusive against the personal representative,78 and is likewise conclusive between the representative and the distributees as to the share which each is entitled to receive.79

One who was a stranger to the proceedings and who did not appear, is not bound by the decree of distribution.80 Those under disability, such as a minor for whom no guardian has been appointed, are not concluded by the decree of distribution.81 Such decree is not evidence as against strangers that the persons to whom the estate is distributed are the heirs of the decedent.82 And although a decree of distribution is in effect a judgment and indicates that the title to property is vested in the distributees, yet it has not the effect of a judgment against a debtor for money or property due on a claim distributed to a legatee.83

76 Stovall v. Banks, 10 Wall. (U. S.) 583, 19 L. Ed. 1036; Williams v. Marx, 124 Cal. 22, 56 Pac. 603; Gates v. Treat, 17 Conn. 388; Fendler v. Daigre, 19 La. Ann. 190; Blackburn v. Crawford, 22 Md. 447; Pierce v. Prescott, 128 Mass. 140; Wood v. Myrick, 16 Minn. 494; Ryan v. Kinney, 2 Mont. 254; Probate Judge v. Robins, 5 N. H. 246; Fischer v. Dolwig, 29 N. D. 561, 151 N. W. 431; Probate Court v. Van Duzer, 13 Vt. 135; Meeker v. Waddle, 83 Wash. 628, 145 Pac. 967.

77 Matter of Underhill, 117 N. Y.

471, 22 N. E. 1120; Rice v. Braden,
243 Pa. 141, 89 Atl. 877.

78 McNabb v. Wixom, 7 Nev.
163.

79 Sayre v. Sayre, 16 N. J. Eq. 505.

80 Coats v. Harris, 9 Ida. 458, 75 Pac. 243.

81 Conwill v. Conwill, 61 Miss. 202.

82 Backdahl v. Grand Lodge, 46 Minn. 61, 48 N. W. 454.

83 Lapique v. Plummer, 168 Cal.
310, 142 Pac. 1079.

See, also, Riechert v. Carr, 183
Ill. App. 99.

§1610. Effect of Receipt for Property.

The personal representative may exact a receipt or release from the distributee to whom he delivers property under a decree of distribution, which release may be filed with the court or its proper officer.84 A receipt may especially be demanded by the representative in those jurisdictions where the procedure does not provide for an adjudication under distribution proceedings of the right of the distributee to receive the property.85 An executor who delivers a legacy of chattels to a life tenant may require the legatee to sign an inventory admitting the receipt thereof and stating that he is entitled to them for life only, after which they belong to the remainderman.8G

A receipt is always open to explanation, and although the distributee may give the personal representative a receipt for a designated sum on a compromise in full of all claims and demands against the estate, this will not prevent the distributee from recovering whatever balance may be due him.87 The purpose of the receipt and the property to which it refers and the consideration therefor may be inquired into.88 If an heir of an intestate sues the

84 Sterrett v. National Safe Deposit etc. Trust Co., 10 App. Cas. (D. C.) 131; Johnson v. Johnson, 108 N. C. 619, 13 S. E. 183.

85 Ford v. Wilson, 10 Del. Ch. 124, 85 Atl. 1073.

86 Howell v. Howell, 38 N. C. 522.

87 Horton's Appeal, 38 Pa. St. 294.

88 Colburn v. Lansing, 46 Barb. (N. Y.) 37.

A distributee who, by private III Com. on Wills-40

arrangement with one of two joint executors, accepts the personal check of the latter and in consideration thereof and of prior advances, gives a receipt to the executors in full for his distributive share, can not, upon the check being dishonored, sue the executors and sureties on their joint bond since the giving of his personal check by one executor was not in line with the duties of his office.-Riggin v. Creath, 60 Ohio St. 114, 53 N. E. 1100.