McNeely v. Imel

BROADDUS, P. J. This action was commenced in the probate court of the county and from there it was taken to the circuit court on appeal. The trial in the circuit court resulted in a judgment in favor of the defendant and plaintiff appealed. We gather from the statement of the record, that defendant, as administratrix, on the 28th day of September, 1908, presented to the probate court the following petition: “Comes now Dora McNeely, administratrix of the said estate, and petitions the Honorable Probate Court for an order authorizing her to expend an amount sufficient to provide for the erection of a vault as a burial place for the late William McNeely, and as grounds therefor states: That it was the expressed will and intention of the said William McNeely, prior to his death, to provide for the erection of said vault and he had contemplated the immediate erection of the same prior to his death; but that his death occurred before he had time to perfect the plans and complete the erection of said vault. “Your petitioner further states that all of the debts that were due and owing against said estate have been paid and that the estate has ample funds to justify the court in ordering the administratrix to expend a reasonable sum for that purpose.” On the same day the court heard the application [5] of the administratrix and authorized her to expend for the purpose $1,750, and that she take credit for that amount in her first annual settlement: On January 18, 1909, plaintiffs as heirs at law of the said McNeely presented their petition to the probate court asking that said order he vacated, ’ assigning several reasons therefor only one of which is of importance, viz.: That the court had no jurisdiction to make such order. On the 5th day of February, 1909, the petition or motion to vacate the order was overruled. From this action of the court the petitioners appealed. In the circuit court the administratrix filed a motion to dismiss the appeal on the grounds, that the court was without jurisdiction to hear the appeal; that the matter appealed from is not appealable; that the appeal is not taken from a final judgment; that the appeal is not taken from a demand allowed against the estate; and that it was not taken at the proper time and in the proper manner. The motion was sustained and the petitioners appealed to this court. As there was no judgment or allowance against the decedent’s estate, nor any order of court, from which an appeal is provided for under section 278> Revised Statutes 1899, governing appeals in administration, the court properly sustained the motion. But plaintiff seems to think the case is governed by section 214, idem, relating to proceedings where an improper allowance has been made. The section does not relate to appeals. And as there had been no claim allowed there could be no appeal, even if it were permissible under the section. The appellants, had they so elected, could have appeared in the probate court when the administratrix filed her first annual settlement and objected to the proposed allowance on the ground "'of want of jurisdiction in the court to make it, or for any other good reason, and then they could have appealed if they felt aggrieved by the judgment of the court. Or they could have ap [6] peared under section 214 and objected on the ground that it was an improper allowance against the estate. We do not want to be understood as holding that if the court had no jurisdiction to allow the claim as a just demand against the estate the question could not be raised at any time before the close of administration or even afterwards. As there was nothing in the case to appeal from, the judgment is affirmed. All concur.