Stark v. Seale

Stayton, Associate Justice.— To entitle the appellant to have the action of the probate court revised by the district court, it Avas necessary for him to shoAV that he had such an interest in the estate of Hathaniel Perry, that he Avas injured by the action of that court. This he attempted to do by showing that he was a creditor of the estate, and that the estate had been so applied as to preArent the collection of his debt. [3] The burden of proving that he was a creditor rested upon him, and the record does not show that such was his character. Appellant’s brief and all of his procedures are based upon the idea that, upon his final exhibit as administrator of the estate of Nathaniel Perry, the probate court found a balance to be due to him, and so decreed. An inspection of the record shows that he filed a final account in 1862, at which time he asked to be discharged from the administration, in which he claimed that there was due to him $110.43; but there is nothing to show that the exhibit was ever approved, or that any action whatever was ever had by the probate court in relation to his claim, except such action as was had in his subsequent procedure, in all of which, so far as the record shows, the court declined to recognize the claim or provide for its payment. There was no recognition of the claim, so far as the record shows, by the administrator de honis non; nor was there any proof of the claim offered in the district court further than his own final account filed in the probate court, in which his claim was set up. That account, unapproved by the probate court, was not evidence of his claim against the estate, and if he sought to establish the validity of his claim, he should have brought other evidence to support it. The record is very loosely made up; many exhibits and vouchers referred to are not.found in the record. If in the record they might show the validity of appellant’s claim; but we are to determine the cause by the record as it is, and not by conjectures as to what it might be. The appellant not showing that he is a creditor of the estate, he has no right to have the action of the probate court in setting apart to the family of the deceased the property of the estate, or in reference to any other matter, revised. The judgment is affirmed. Affirmed. [Opinion delivered February 9, 1883.]