In re Esate of Coryell's

Decision Date09 April 1909
Citation101 P. 723,16 Idaho 201
PartiesIn the Matter of the Estate of CARY A. CORYELL, Deceased. v. GEORGE T. MILLER, as Administrator, et al., Respondents LEWISTON NATIONAL BANK, Appellant,
CourtIdaho Supreme Court


1. The right of appeal in probate matters, from the probate to the district court, is of purely statutory regulation, and where the right of appeal is challenged, the authority for such appeal must be found in the statute.

2. Where a claim is presented to the administrator and by him allowed, and afterward to the probate judge and by him allowed, the effect of such allowance is merely to rank the claim among the acknowledged debts of the estate to be paid in due course of administration.

3. The order or judgment of a probate judge, allowing a claim against an estate upon an ex parte showing, is not a final order or judgment, which binds or affects the heirs of such estate who have not appeared, objected to, or contested such claim.

4. The statutes of this state give an heir the right to appear and contest a claim, after its allowance by the administrator and the probate judge, and such heir is not concluded by the order or judgment of allowance made in the first instance.

5. Under the statutes of this state, where a claim against an estate has been allowed by the administrator and afterward by the probate judge, and thereafter objections and exceptions are filed by an heir of such estate, the probate judge has power and jurisdiction to set aside his former allowance of such claim and to hear and determine the objections and exceptions filed.

6. Where exceptions and objections are filed to the allowance of a claim against an estate, in the manner directed by statute the issue thus presented should be heard and tried by the probate judge, and until heard and tried is pending in such court.

7. Where a claim against an estate is in the first instance allowed by the administrator and the probate judge, and thereafter upon objections filed by an heir such allowance is set aside, such claim is then pending against such estate and an appeal will not lie from the order of the probate judge setting aside his former allowance of such claim.

8. The statute of this state authorizes an appeal to the district court from an order settling and allowing an account of an administrator, but where the probate judge settles and allows part of the account of an administrator and continues the remainder for future consideration and hearing, the judgment thus rendered does not settle such account as to the matters continued for future consideration; and an appeal will not lie from such order by those affected or interested in the matters continued for future consideration.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, in and for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Claims against the estate of a deceased person. This appeal is taken from a judgment of the district court dismissing an appeal from the probate to the district court. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

James E. Babb, and John R. Becker, for Appellant.

The Idaho statutes on administration were taken from California and the supreme court of California, in Re Estate of Schroeder, 46 Cal. 305, stated (July, 1873): "Our probate system is derived mainly from Texas, and in most respects is identical with it. (Hillebrant v. Burton, 17 Tex. 138.)"

"We have repeatedly decided that the approval of a claim by the probate court, after it was allowed by the executor or administrator, is a quasi judgment, which cannot, at a subsequent term, be set aside by the probate court." ( Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118 and cases cited; Estate of McKinley, 49 Cal. 152.)

The indorsement by the probate judge hardly rises above an act of administration, or above the act of the administrator in indorsing his allowance. These acts, while of a discretionary nature, are administrative, acts not different from the acts of auditors and auditing boards of private and municipal corporations and states and counties. When such bodies and persons act their action is final, and they have no power to vacate it or reject it. It is considered, therefore, that the parties should not be put to a bootless trial or rehearing before a tribunal whose rehearing would not result in a determination that would settle some of the issues or that would be any more binding than the original determination. Such rejection would burden intolerably the method of realizing on such claims. (2 Am. & Eng. Ency. of Law, 2d ed 1004; Hitchcock v. Genessee Probate Judge, 99 Mich. 128, 57 N.W. 1097; In re Hudson, 63 Cal. 454.)

The action of indorsing allowances on the claims is not an action of the probate court, but of the judge thereof only, and he, as such judge only, acting in vacation, is not the court of record and of general jurisdiction referred to in our constitution. He is an instrument of that court. When these claims are required to be passed upon on hearing of an account in which they are listed, the statute requires that the hearing be held in term time of the court, and by the court and not by the judge. The final hearing cannot be had before the judge, upon the validity of these claims, but must be had before the tribunal in term time. This distinction has been applied to various inferior officers and tribunals. ( State v. Case, 14 Mont. 520, 37 P. 97; Corthell v. Mead, 19 Colo. 386, 35 P. 741; Weimmer v. Sutherland, 74 Cal. 341, 15 P. 849; Simon v. Justice's Court, 127 Cal. 45, 59 P. 296.)

On the hearing of appeals from the probate court the hearing in the district court is confined to the issues made in the probate court; new issues cannot be made in the district court. ( In re Estate of McVay, 14 Idaho 69, 93 P. 31.)

John O. Bender, George E. Erb, and G. Orr McMinimy, for Respondents.

It has been uniformly held that an appeal from an order of the court of the character of those before us cannot be sustained unless the orders are specifically enumerated in the statute. (In re Kelly's Estate, 31 Mont. 356, 78 P. 579, 79 P. 244; In re Walkerly's Estate, 94 Cal. 352, 29 P. 719; In re Tuohy's Estate, 23 Mont. 305, 58 P. 722; In re Kelly's Estate, 31 Mont. 356, 78 P. 579, 79 P. 244.) The right of appeal is statutory and unknown to the common law. It cannot be extended in cases not within the statute. (General Custer Min. Co. v. Van Camp, 2 Idaho 40, 3 P. 22; Pierson v. State Board of Land Com., 14 Idaho 159, 93 P. 775.)

While these claims had been allowed and ranked as the acknowledged debts of the estate, still they have not been finally adjudicated, and could not be ordered paid until the final settlement of the estate when, if still ranking as acknowledged debts of the estate, the court should order them paid, and upon refusal thereof the claimant would have the right to appeal therefrom to the district court under subd. 7 of sec. 4831, which is evidently directly responsive to sec. 5610 in such cases. (In re McDougald's Estate, 143 Cal. 476, 77 P. 444; In re Williams' Estate (Cal.), 32 P. 241.)

The orders from which these appeals were attempted to be made from the probate court to the district court are not among those enumerated in sec. 4831, which embraces all the orders from which an appeal may be taken to the district court from the probate court. (In re Kelly's Estate, supra; In re Barker's Estate, 26 Mont. 279, 67 P. 941; In re Cahill's Estate, 142 Cal. 628, 76 P. 383; In re Wittmeier's Estate, 118 Cal. 255, 50 P. 393; In re Estate of Lutz, Sr., 67 Cal. 457, 8 P. 39; In re Williams' Estate (Cal.), 32 P. 241; In re Walkerly's Estate, 94 Cal. 352, 29 P. 719.)

The only appeal that can be made is from the order settling the account, and no appeal lies from the order vacating the allowance of the claims, although it be held that the contest is a part of the proceeding in settlement of the account. ( Horn v. Volcano Water Co., 18 Cal. 141; Estate of Paige, 12 Idaho 410, 86 P. 273.) The order made on April 4, 1908, was a final order settling the account of the administrator, from which an appeal might have been taken, notwithstanding the fact that these contested claims, although held to be a part of the account, were expressely reserved therein for future action. (Thompson v. Dean, 7 Wall. 342, 19 L.Ed. 94; Forgay v. Conrad, 6 How. 204, 12 L.Ed. 404.) If these allowed claims were a part of the administrator's account, they were merely incidental thereto, and an independent appeal cannot be taken from the order vacating their allowance, but in order to have them reviewed by the appellate court, the appeal must be taken from the order settling the account. ( Hutchinson v. Otis, Wilcox & Co., 190 U.S. 556, 23 S.Ct. 778, 47 L.Ed. 1179.)

Separate appeals cannot be taken from the different orders in settling an account pertaining to the claims against an estate, either by the administrator or by the claimants, but only one appeal may be taken, and that must be from the order settling the account. (Matter of Maxwell, 26 N.Y.S. 216.)

Every creditor and every heir of this estate has a right to contest these claims, and should this contest, made by these heirs who are not all of the heirs in this estate, be treated as a part of the settlement of the account of this administrator then the creditors and these other heirs would be deprived of their right to contest these claims, without any hearing, or their day in court, since the settlement of the account is final against them. (Sec. 5602, Rev. Codes.) And they were not made parties to the contest...

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