10 Mont. 422 | Mont. | 1891
This is a motion to dismiss the appeal. The substantial part of the notice thereof is as follows: “Henry C. Yaeger, administrator of the estate of William A. Dewar, deceased, hereby appeals to the Supreme Court of the State of Montana from an order made in the District Court .... on the twenty-second day of July, 1890, wherein said court sustained the objections then considered to the administrator’s final report herein, and from all subsequent action in said cause, including the decree of distribution made therein on the thirtieth day of July, 1890, and from the whole thereof.”
It appeal’s from the transcript that letters of administration were issued to Yaeger, the appellant, in June, 1887, upon the estate of said Dewar, by the Probate Court of Lewis and Clarke County; that his final account as administrator was filed in April, 1889; that the objections of the persons who purchased the interests of the heirs of said estate to the fees claimed by the administrator for his services were overruled by the Probate Court; that they appealed in June, 1889, to the District Court from the order fixing the amount of said fees; that the District Court made, July 22, 1890, the order which is specified in the foregoing notice of appeal, and reversed the decree of the Probate Court concerning said fees, and reduced the same; and that afterwards, upon the thirtieth day of July, 1890, the District Court made and entered the decree of distribution, which is described in the said notice of appeal.
We will review the grounds of the motion which has been submitted. The respondent maintains that two separate actions have been united in one appeal; that the first order which is appealed from was made by the court below in the exercise of its appellate jurisdiction under the laws which governed the Territory of Montana; and that the last-named order was made by the District Court by virtue of its original jurisdiction under the Constitution of the State. This position has been thoroughly examined by the Supreme Court of the State of California, and is untenable. These orders are not treated as actions in the legal sense of the term. “We hold,” said the court (In re Rose, 80 Cal. 166), “therefore, that upon appeal from an order settling an administrator’s account, all the proceedings leading up to it, including the evidence upon which it is based, are open to
The respondents contend that the ruling of the court below in sustaining the objections to the account of the administrator is not appealable. The orders which are complained of were made in the District Court more than eight months after the admission of the State of Montana into the American Union. This important question has been carefully considered in Re McFarland’s Estate, post, page 445, and for the reasons which appear therein we are satisfied that the court can entertain the appeal from the order made July 22, 1890.
It is urged that the administrator was not interested in the estate of the deceased, and cannot appeal from the decree authorizing the distribution of the estate. The authorities support the proposition. The appellant was not an heir of the
In the case at bar it will be observed by an inspection of the notice of appeal that “ Yaeger, administrator of the estate of William A. Dewar, deceased,” is the appellant. He has no interest by reason of his official character in the decree of distribution, and his appeal from the order of the court below made July 30, 1890, is hereby dismissed.
The motion to dismiss the appeal from the order of the District Court, made July 22, 1890, is hereby overruled.