In re Kidder's Estate

Gileillan, C. J. .The administrator filed a claim against the estate, and on the day appointed for the hearing of claims, of which the appellant had due notice, the claim was heard and allowed. Seven months afterwards the appellant moved in the probate court for an order vacating the allowance of the claim. The only excuse he made for failure to appear and oppose the claim at the time for hearing claims was the confidence he felt that the administrator would administer the estate justly and honestly, and not permit unjust claims (which he alleges this is) to be allowed. The administrator appealed from the order vacating, to the district court, which reversed the order. The result must be the same whether we are to consider the district court as exercising a strictly appellate jurisdiction, and called on to determine whether there was error in the decision of the probate court, or the matter was before it as though the motion were made there in the first instance. Such an application is addressed to the sound discretion of the court. But there must always be some show of excuse for the party’s failure to protect his rights at the proper time. To relieve him without such excuse is abuse of discretion. Here there was no excuse. In adversary proceedings no one has a right to rely on the party, whose interests are opposed to his, taking care of his. So that whether the district court were to exercise its own discretion as upon an original application, or merely review the exercise of discretion by the probate court, its decision was correct. Judgment affirmed. (Opinion published 55 N. W. Rep. 738.)