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Weihe v. Statham

Supreme Court of California
May 28, 1885
67 Cal. 84 (Cal. 1885)

Opinion

         Department One

         Appeal from a judgment of the Superior Court of Fresno County.

         COUNSEL:

         H. S. Dixon, for Appellants.

          Sayle & Harris, and Bennett & Wigginton, for Respondents.


         JUDGES: Ross, J. McKinstry, J., and McKee, J., concurred.

         OPINION

          ROSS, Judge

         This is an action by the heirs of William W. Hill, deceased, against the administrator of the estate and his bondsmen to recover upon the bond, because of the allowance by the administrator and the probate judge of a claim against the estate alleged to have been barred by the Statute of Limitations and otherwise invalid, and its subsequent payment in part by the administrator, but without an order of the Probate Court. It affirmatively appears from the complaint that the administration of the estate of the deceased Hill is still pending in the Probate Court, and that no account of his administration has been presented by the administrator. It has several times been decided by this court that the allowance of a claim by the administrator and probate judge is not conclusive upon the heirs, but that they may contest such allowance in subsequent proceedings of the Probate Court. (Code Civ. Proc. § 1636; Estate of Loshe , 62 Cal. 413; Estate of Hill , 62 Cal. 186.) If the allowance of the claim sought to be contested by the present suit was improperly had, and objection is made at the proper time in the Probate Court having control of the administration, that court will doubtless vacate the allowance and compel the administrator to account for the money paid thereon out of the funds of the estate. It is for the Probate Court to settle the accounts of the administrator, and we have frequently so held. (In re Curtiss , 65 Cal. 572; Chaquette v. Ortet , 60 Cal. 594; and the authorities there cited.) After the status of the accounts has been fixed, if the administrator shall fail to pay what, if anything, may be adjudged against him, the plaintiffs will have their action upon the bond.

         Judgment affirmed.


Summaries of

Weihe v. Statham

Supreme Court of California
May 28, 1885
67 Cal. 84 (Cal. 1885)
Case details for

Weihe v. Statham

Case Details

Full title:PAULINA WEIHE et al., Appellants, v. A. H. STATHAM et al., Respondents

Court:Supreme Court of California

Date published: May 28, 1885

Citations

67 Cal. 84 (Cal. 1885)
7 P. 143

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