State ex rel. Blakeman v. Steele

MITCHELL, J. In tbe estate of William Blakeman, tbe probate court, on tbe ex parte application of the widow of tbe deceased, made an order making her an allowance of $50 a month out of the personal estate of the deceased for tbe maintenance of herself and family during tbe settlement of tbe estate, and directing tbe executor to pay tbe same. Subsequently tbe executor moved the probate court to vacate or modify tbe order, for tbe reason that there ■was no personal estate from which to pay tbe allowance. That •court having denied tbe motion, tbe executor appealed to tbe district court, where tbe action of tbe probate court was affirmed. Thereupon tbe probate court, on tbe motion of tbe widow, made an 29 order requiring the executor to pay her, on or before a day named, the monthly allowance according to the terms of the original order of that court. This application is for a writ of certiorari to review this last order. We are of opinion that the writ will not lie; that the executor’s-remedy is by appeal from the order of the district court affirming the action of the probate court in refusing to vacate or modify the order making the allowance. The order now sought to be reviewed' by certiorari is purely one to enforce the original order making the allowance. If the original was correct, it ought to be enforced;, and, if it was erroneous, the remedy is by appeal from the order refusing to vacate or modify it. State v. Probate Court, 51 Minn. 241, 53 N. W. 463, relied on by the relator, is not in point. The order' reviewed by certiorari in that case was one refusing to direct the payment of a claim against the estate out of a particular fund, on the ground that the fund was not applicable to the payment of' such claims. There was no right of appeal by which that question could be reviewed. But in this case the error, if any, was in the order refusing to vacate or modify the order making the allowance; and from that order an appeal will lie, first to the district court and then to this court. It is evident that the relator is now seeking to raise on certiorari the same question which he raised, and had aright to raise, on the appeal to the district court. Writ denied.