No. 1482 | N.M. | Oct 4, 1912
OPINION OP THE COURT.
-A motion has been filed in this court to dismiss the appeal, several grounds therefor being urged, but we deem it necessary to consider only the first proposition urged, which involves the right of a creditor of an estate to persist in his application, for appointment as administrator of such estate, after his debt has been paid.
Under our practice the hearing upon the appeal to the District Court was a trial de novo, therefore, in our opinion, the tender, to Brown, of the full amount of his claim in the District Court was as effective as though made at the time of the hearing in the Probate Court.
The statute upon which appellant bases his right to administer the estate in question is sec. 1963 of the Comp. Laws of 1897, which is as follows:
“If the deceased person makes no will, the estate shall be administered by the surviving conjugal partner, if married, and in the absence of such person, by the nearest relative of the deceased, or other person having an interest in the distribution of the property, be it an executor, legatee or creditor.”
We fully agree with the reasoning of the opinion in the case of Culley et al. v. Mohlenbrock, 36 Ill. App. 85, from which we quote as follows: “The onty conceivable reason for giving a creditor the right to administer upon the estate of a deceased person over persons generally, is that he has an interest in the estate to the extent of his claim.”
When those to whom the estate would go, under the law, offer to pay the claim and tender the same, all reason for giving the creditor á preference in the appointment as administrator ceases. His being a creditor does not give him such a preferential right that it may not be divested by the payment of his claim by those “to whom the property of the estate belongs, subject to the payment of the debts of the estate.”
It cannot be seriously urged by appellant that he would gain by. a reversal of the action of the District Court. His right to administer has been divested. He has performed no services as an administrator, never having qualibed or furnished a bond, and, therefore, has no right to claim the fees of an administrator. We believe that this cause relates to questions involving a right which .has ceased to exist and, therefore, this appeal should be dismissed. The Supreme Court of Iowa in the case of The Chicago R. I. & P. Ry. Co. v. Dey, 46 Iowa, 281, says:
2 “It is a familiar rule, often applied, that this court will not correct errors which work -no prejudice to the parties complaining of them.”
So, in tins case, the appellant being now without the right to assort any claim to administer upon the estate in question is not prejudiced by the alleged errors complained of.”
Wc have carefully considered the other points made by appellant, hut cannot consider them of sufficient weight to justify anj1- exception to the well established principle!v upon which this opinion is based.
The motion to dismiss is therefore sustained and this appeal dismissed at costs of appellant.