75 Cal. 419 | Cal. | 1888
By the last will and testament of deceased, his mother, Almira W. Wheeler, was made sole legatee and devisee of his estate. She was also his only heir at law.
Washington Ayer, as assignee of Almira W. Wheeler, moved the superior court wherein the administration was pending, that citation issue to George A. Worn, administrator with the will annexed of the estate of deceased, commanding him to appear and show cause why an order should not be entered directing him to dismiss a certain action theretofore brought by said Worn as administrator, etc., against the executors of E. M. Fry,
The court below made and entered an order entitled in the transcript, “ Order directing administrator to file account, etc.,” wherein tin- court directed that the said administrator with the will annexed, “on the coming to him of a certified copy of this order, do forthwith file in this court an account of the receipts and disbursements made by him as administrator with the will annexed of said estate since his qualification as such, and of his actions and proceedings as such administrator since said date.” The order then proceeds,—and it is from that portion of the order which follows that this appeal is taken,—“ which said account shall stand and serve as the final account of such administrator, and it is further ordered, adjudged, and decreed that said George A. Worn, as administrator with the will annexed of the estate of Frank Dyer Bullock, deceased, do forthwith dismiss, abate, and discontinue, and that he do order and require to be dismissed, abated, and discontinued, that certain action hereinabove mentioned as pending in the superior court of the city and county of San Francisco, state of California, numbered 16665, and entitled, George A. Worn, as administrator with the will annexed of the estate of F. D. Bullock, deceased, plaintiff, v. J. D. Fry, executor of the last will and testament of E. M. Fry, deceased, and Charles S. Neal, defendants, and that no further proceeding be had or taken therein by said George A. Worn, except as may be necessary to procure the dismissal, abatement, and discontinuance of said action.
“And it having appeared to the court that no property of any nature, kind, or description belonging to said estate has ever come to the hands of said George A. Worn, as such administrator, or otherwise, and that there are
We express no opinion as to the validity of the orders contained in the portion of the decree appealed from. Void orders may be appealable. If the orders appealed from can be treated simply as orders commanding the dismissal of the action against the executor of the estate of Fry, deceased, and another, and directing the discharge of Worn, administrator, upon and after the settlement of an account not yet filed, they were premature, but not appealable. (Code Civ. Proc., sec. 963.) But they were neither mere recitals nor orders independent of the settlement of the account which was ordered in the same decree. When the court undertook to direct the dismissal of an action brought by the administrator upon a claim alleged to be due the estate, and to find thereupon that there was no property in the hands of the administrator, it undertook both to state and settle his account to that extent. It determined his rights in that regard, and settled, or attempted to settle, his account as effectually as if the order had been made after he had filed an account.
Whether an order is appealable is to be determined by what it purports to determine, not by what may be its actual operative effect. The portion of the decree appealed from was, if operative, a settlement of an account.
From what has been said, it appears that the court below erred in entering and making it.
Temple, J., Thornton, J., and Sharpstein, J., concurred.
