105 Cal. App. 2d 102 | Cal. Ct. App. | 1951
On this motion to dismiss the appeal respondent contends that the order is not appealable within the terms of section 1240 of the Probate Code. A claim for $51,771.40 was approved by the executrix and ordered paid. The claim did not ask for interest and none was allowed. Thereafter the claimant moved in the probate court for an order directing the executrix to pay interest on the claim and his motion was denied. Section 1240 of the Probate Code provides, inter alia, “An appeal may be taken to the supreme court from an order . . . directing or allowing the payment of a debt, claim, . . . refusing to make ...” such an order.
This portion of the section has been interpreted in Estate of Flint, 15 Cal.App.2d 299, where the court said (p. 300
The settled rule is that the judge sitting in probate has no jurisdiction to order paid a claim which has been rejected in whole or in part by the administratrix. “ [T]he only recourse of the dissatisfied creditor is a suit.” (Estate of Bette, 171 Cal. 583, 587 [153 P. 949]; 11A Cal.Jur. sec. 600.) An order of the probate court refusing to exceed its jurisdiction in this respect is not an appealable order under the code section.
Appeal dismissed.
Goodell, J., and Dooling, J., concurred.