In re Kelly's Estate

• Decision Date: 01 December 1904
• Citation: 78 P. 579,31 Mont. 356
• Parties: In re KELLY'S ESTATE.
• Court: Montana Supreme Court

78 P. 579

31 Mont. 356

In re KELLY'S ESTATE.

Supreme Court of Montana

December 1, 1904

Commissioners' Opinion. Appeal from District Court, Lewis and Clarke County J. M. Clements, Judge.

In the matter of the estate of Patrick Kelly, deceased. From orders denying an application to vacate a decree of distribution and refusing to vacate an order settling the administrator's account, one Harold Kelly, an alleged heir, appeals. Dismissed.

Carpenter Day & Carpenter, for appellant.

A. J Galen, for respondent.

CALLAWAY C.

One Harold Kelly, alleging himself to be an heir of Patrick Kelly, deceased, has attempted to appeal from two orders made by the district court, viz., from an order denying his application to vacate the decree of distribution in the matter of the estate of Patrick Kelly, deceased, and from an order denying his application to vacate an order settling the administrator's account and discharging him. It is apparent that no appeal lies from either of the orders mentioned. Subdivision 3 of section 1722, Code Civ. Proc., as amended (Sess. Laws 1899, p. 146), provides that an appeal may be taken to the Supreme Court from a District Court in the following cases: "From a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary, or of administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or revoking the probate thereof; or against or in favor of setting apart property, or making an allowance for a widow or child; or against or in favor of directing the partition; sale or conveyance of real property, or settling an account of an executor, or administrator, or guardian; or refusing allowing, directing, the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy or distributive share; or confirming or refusing to confirm a report of an appraiser setting apart a homestead." The foregoing enumerates all the cases in which an appeal may be taken to this court from the district court in probate proceedings, and an order refusing to vacate a decree of distribution and settlement of final account is not one of them; neither is an order denying an application to vacate an order settling an administrator's account and discharging him. See In re Wiard's Estate, 83 Cal. 619, 24 P. 45. It has been uniformly held that an appeal from an...