Webb v. Stillman

26 Kan. 371 | Kan. | 1881

The opinion of the court was delivered by

Horton, C. J.:

This proceeding is an appeal from an order of the probate court of Doniphan county, directing the administrator to pay the balance due upon a claim in favor of the defendant in error, against the estate of Archibald Webb, deceased, duly allowed October 29, 1877, and assigned to the second class of claims. The appeal of the administrator, on motion, was dismissed by the district court, upon the ground that the order of the probate court is not appealable. The order of dismissal was properly granted, and we cannot add much if anything to the opinion filed by the learned district judge. Section 188 of the act respecting executors and administrators, p. 434, Comp. Laws of 1879, reads as follows:

“Appeals shall be allowed from the decision of the probate court to the district court in the following cases: First, On all demands against an estate exceeding twenty dollars. Second, On all settlements of executors and administrators. Third, On all apportionments among creditors, legatees or distributees. Fourth, On all orders directing the payment of legacies, making distribution, or making allowances to the widow. Fifth, On all orders for the sale of personal estate because distribution cannot be made in kind. Sixth, On all orders for the sale of real estate. Seventh, On judgments for waste. Eighth, On proceedings to recover balances es-cheated to the state or county. Ninth, On orders revoking letters testamentary, or of administration. Tenth, On orders making allowance for the expenses of administration. Eleventh, On orders for the specific execution of contracts Twelfth, On orders compelling legatees or distributees to refund; and in all other cases where there shall be a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction.”

The order complained of does not come within any of the provisions of this section. It is substantially a demand made by the creditor, through the court upon the administrator, to pay a claim already allowed. Instead of being a final order, is is rather an anomalous order, which concludes the rights of no one. It simply directs the payment of a claim allowed. If the administrator has any valid defense to the enforcement of the allowance of October 29, 1877, he must pursue some other remedy for the protection of the rights of the estate which he represents, than appealing from an order directing merely its payment.

The order and judgment of the district court will be affirmed.

All the Justices concurring.