Opinion
Application to the Supreme Court to prove bill of exceptions.
COUNSEL
H. S. Dickson, for Petitioners.
OPINION
In Bank. The Court:
This is an application to prove certain alleged facts on which an exception was reserved, which exception it is averred the Judge of the Court below has refused to allow in accordance with the facts. We have examined the petition and answer, and are of opinion that the petitioners should be allowed to make proof of such facts.
The matters referred to in the petition and answer relate to a contest as to a claim which had been allowed by the administrator, which allowance is contested by the heirs and distributees of the deceased, who are the petitioners.
The Judge of the court below refers to the matters in issue as something incidental and collateral to the proceeding before the Court. In this we can not concur with him. The matters in contest relate to the allowance of a claim by the administrator of deceased, which, the petitioners allege, was improperly and unlawfully done; and these matters were brought before the Court, in connection with the settlement of the final account of the administrator. An allowed claim may be contested at such settlement ( C. C. P., § 1636), when such claim has not been passed on on the settlement of a former account, or on rendering an exhibit, or on making a decree of sale. Such does not appear to have been the case with regard to the claim in this case.
We are of opinion that the prayer of the petitioners should be granted, and an order will be made that the petitioners be allowed to prove the facts alleged in their petition before Stuart S. Wright, on reasonable notice to be given.