179 P. 643 | Ariz. | 1919
It appears that appellee, as a creditor of the estate of Nasif Tamer, presented to the administrator and the judge of probate her verified claim against the estate for $6,680. A hearing thereon, at which evidence to support the claim was submitted by claimant, and evidence to defeat the claim was submitted by appellants “ J. W. Clayton, guardian ad litem for Reginald Flake and Joseph Tamer, Abram Tamer and Reiser Tamer,” was had. Whereupon “it -was by the court ordered . . . that the claim of Elena Elia for the return of personal property be allowed in the amount of six thousand six hundred and eighty dollars ($6,680).” It is from this judgment and order overruling motion for a new trial that the appeal is taken by the persons above described as appellants.
Under the law, the appeal will have to be dismissed. There is nothing in the records showing that appellants are parties in interest, or that they are aggrieved. But, assuming that they are heirs of Nasif Tamer and entitled to a distributive share of his estate, the law does not give them the right to appear and contest the allowance of claims by the administrator or judge in probate in the first instance or upon their original presentation. The provisions of the law for the presentation of claims against an estate and the allowance or rejection thereof, as contained in sections 879 to 903, inclusive, Civil Code, do not provide for a hearing thereon at which the heirs may be heard as contestants. The act of approval or rejection is ex parte. Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237. If the claim is rejected, the
The allowance of claims is “not binding and conclusive against the heirs because they were not parties to it. They had therefore the right to question the allowance at the settlement of the estate.” In re Swain, 67 Cal. 637, 8 Pac. 497; Wise v. Williams, 88 Cal. 30, 25 Pac. 1064; Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237.
The administrator does not appeal. The property involved ■was personal property and personal assets of the estate. Such effects of an estate are solely in the keeping and protection of the personal representative.
“The title of the executor or administrator, as representative, extends so completely to all personal property left by the decedent as to exclude creditors, legatees, and all others interested in the estate. They cannot follow such property specifically into the hands of others, much less dispose of it; but the executor or administrator is the only true representative thereof that the law will regard) The legal and equitable title to all the personal property of the deceased, including choses in action and incorporeal rights vests in fact in the executor or administrator, as against all others, during the suitable period for administration, and he holds this property as a trustee and proper representative of all parties interested therein.” Paragraph 239, Schouler’s Executors and Administrators.
The heirs of the decedent have no standing in the courts in litigation affecting the personal assets of the estate. They may not prosecute appeals or writs of error when the subject matter is the personal property of the deceased. That duty pertains to and may be exercised only by the personal representative. Smith v. Stilwell, 9 Ariz. 227, 80 Pac. 333; Presbury v. Pickett, 1 Kan. App. 631, 42 Pac. 405; Zahn v. Obert (Okl.), 159 Pac. 298.
There is another reason why this appeal cannot be maintained. Section 1226, Civil Code, provides that “A judgment or order in a civil action or proceeding or in a probate
Section 1227, Id., provides that “An appeal may be taken to the Supreme Court from a superior court in the following cases: . . . (3) Prom 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 or refusing to revoke the probate thereof; or against or in favor of setting apart property, or making 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,^ administrator or guardian; or refusing, allowing or directing the distribution or partition of an estate, or any part thereof, or payment of a debt, claim, legacy or distributive share;, or confirming or refusing to confirm a report of an appraiser or appraisers setting apart a homestead, or determining heir-ship. ...”
The judgment or order, if it may be so called, made in this case, is not included in subdivision 3 as one from which, an appeal may be taken, and there is no other provision of the statute covering it.' The allowance or rejection of a claim is not by the court, but by the judge thereof (sections 884, 885, 886, 887, 888, Civil Code), and the appeal provided for by section 1227 is from a judgment or order of the court, and not from a judgment or order of a judge of the court. As before stated, the law nowhere provides for the proceeding had in this case, or for the settlement of claims against the estate by “the return of personal.property.”
For the reasons above, the appeal is dismissed.
CUNNINGHAM, C. J., and BAKER, J., concur.
