In re Barker's Estate

• Decision Date: 24 February 1902
• Citation: 67 P. 941,26 Mont. 279
• Parties: In re BARKER'S ESTATE.
• Court: Montana Supreme Court

67 P. 941

26 Mont. 279

In re BARKER'S ESTATE.

Supreme Court of Montana

February 24, 1902

Appeal from district court, Cascade county; J. B. Leslie, Judge.

Proceeding to settle the estate of Edwin J. Barker, deceased. Order settling the account of David L. S. Barker as administrator disallowing certain objected items, and directing the administrator to turn over the assets to Marcella Barker appointed special administratrix, and the administrator appeals. Dismissed.

Fletcher Maddox and H. G. McIntire, for appellant.

T. E Brady and Wm. G. Downing, for respondent.

BRANTLY C.J.

Motion to dismiss appeals. On July 12, 1901, the appellant, David L. S. Barker, as administrator of the estate of Edwin J. Barker, deceased, filed an account of his administration covering the time from his appointment until that date, and asked that it be allowed. At that time there was pending a petition filed by Marcella S. Barker, the widow of the deceased, charging the administrator with mismanagement and fraud in connection with his trust, and asking that he be removed from his office. This petition had been pending for some time, and some evidence had been heard in support of the charges. Marcella S. Barker also filed written objections to certain items in the account, and asked that they be disallowed. One of these items was a charge of $500 for attorney's fees claimed by the administrator to have been paid for services rendered in connection with the estate. An other was an individual claim of David L. S. Barker, the administrator, as creditor of the deceased, which had theretofore been presented to the judge, and had been indorsed "Allowed." The amount of this claim is $2,098.80. A hearing was had upon the account and the petition for removal, upon evidence then and theretofore taken; but before the motion was finally submitted the petition for removal was withdrawn, and the administrator tendered to the court his resignation, in writing, asking the court to discharge him upon settlement of the account. On August 1, 1901, the court made an order settling the account, after striking out some of the items objected to, including $250 of the first and the whole of the second, mentioned above. The order also directed the administrator to deliver to Marcella Barker, who was at the same time appointed special administratrix, all the property and assets in his hands belonging to the estate, and to file his receipts therefor for approval and final discharge. The order specifically mentioned 426,720 shares of the stock of the Big Seven Mining Company, which at the hearing the administrator had endeavored to show did not belong to the estate, but to Jane Barker, the mother of himself and deceased, and were in his hands as her agent. Before striking out the item of $2,098.80, the court revoked the previous allowance of it as a claim against the estate. The administrator thereupon took his appeals to this court from the parts of the order disallowing the two items mentioned, and also that portion of it requiring him to deliver the mining stock to the special administratrix. Marcella Barker has filed her motion to dismiss the appeals from those portions of the order disallowing the second item of $2,098.80, and directing the delivery of the stock, on the ground, among others which it is not necessary to notice, that the orders are not appealable.

1. The appellant contends that he has appealed from the order as a whole, and that the motion cannot be entertained. The notice shows that the appellant, in taking the appeals, proceeded upon the assumption that they are separate and distinct; for if the recital in the first paragraph of it be read with each of the three others, which are numbered in consecutive order there is a separate and distinct notice for each appeal. Evidently counsel for appellant had in mind, when giving the notice, section 1724 of the Code of Civil Procedure, which contemplates the taking of appeals from a judgment or order, or a specific part thereof, and proceeded upon the theory that he could take the appeals as he did. The appeals may therefore, upon this theory, be treated as separate and distinct, and the motion may be...