Jones v. Jones, No. 600

No. 600 | Utah | Aug 31, 1895

BaRtch, J.:

This is an appeal from an order of the district court dismissing an appeal from the probate court of Box Elder county. It appears from the record that Lewis H. Jones died intestate, leaving neither wife nor issue; that B. II. Jones, a bi’other of deceased, on September 13, 1894, at the request of the parents of the deceased, filed his petition for general letters of administration; that on September 21, 1894, Ricy EL Jones, another brother of the deceased, petitioned the court for general letters of administration, and on the same day B. H. Jones was appointed special administrator of the estate; that on November 9, 1894, the petition of Ricy H. Jones was denied, and B. H. Jones was appointed general administrator; that on December 24, 1894, Ricy H. Jones appealed to the district court from the order appointing B. EL Jones special administrator, and from the one appointing him general administrator, and from several other orders; and that, within two days after the appeal was taken, Ricy H. Jones and R. D. Jones were appointed special administrators of the estate. All these administrators gave bonds, and 'received letters of administration. Under this state of facts, the appellants insist that the court erred in dismissing the appeal of Ricy EL Jones from the various orders of the probate court.

The motion to dismiss was based on the records and files of the proceedings in the case, and there appears ta be nothing contained in the record of appeal to this court which indicates that Ricy H. Jones had such a personal interest in the estate as entitled him to appeal from an order appointing an administrator. It is shown, however, from the facts aboye stated, that Lewis H. Jones died intestate, leaving his father and mother, but neither wife nor any child, surviving him. This being so, Ricy H. Jones, the appellant from the order of the probate court, was not entitled, as heir at law, to any portion of the estate; for section 2741, subd. 2, Comp. Laws 1888, among other things, provides' as follows.- “If the decedent leave no issue, nor husband, nor wife, the estate must go to his father and mother in equal shares, or if either be dead, then to the- other.” This statute is conclusive of the rights of Ricy H. Jones as heir at law, and there appears to be nothing in the abstract indicating that he had any other interest in the estate, giving him a right to appeal, under, the provisions of rule 24 of the supreme court (27 Pac. ix), which, so far as material here, reads as follow: “Any party entitled by reason of a personal interest, to ask for, or to oppose any judgment or decree in the probate court, may appeal from the judgment or decree made by the court, adverse to him or his interest, to the district court of the judicial district embracing the county where such probate court is held.” Under this rule, the mere fact that Ricy H. Jones was a brother of the deceased avails him nothing. In order to enable him to take such • an appeal as was attempted in this case, it must affirmatively appear that he had a personal interest in the estate, because that is the ground upon which the right of appeal rests in a case of this character. No such interest appearing, the district court properly dismissed the appeal.

There were other questions raised by counsel in this case, but we do not deem it necessary to discuss them, because there appears to be no reversible error in the record. The judgment is affirmed.

Merritt, C. J., and KiNG, J., concur.