Laymance v. Utter

[105]

HALL, J.

This is an appeal by M. J. Laymance, who is described in his notice of appeal as “a party in interest in said estate, and assignee of Mary L. Flick, one of the legatees and devisees under the last will and testament of said N. D. Thayer, deceased,” from an order settling the final account of the executor.

The transcript contains no bill of exceptions or statement authenticated in any way by the judge of the trial court, but contains certain documents certified to by the clerk, as follows :—

1. A decree of partial distribution to M. J. Laymance, dated and filed February 27, 1903.

2. A notice of appeal by the executor and certain legatees from said decree, dated and filed March 6, 1903.

3. The order settling the final account of the executor, dated and filed April 15,1904, (which is the order from which this appeal is prosecuted).

4.

Remittitur

(setting out judgment of supreme court reversing decree of partial distribution), dated April 11, 1904, and indorsed “Filed April 16, 1904.”

5. Notice of appeal, filed June 14, 1904, and the certificate of clerk that an undertaking on appeal in due form was filed.

Appellant in his brief states that “The sole question involved in and by this appeal concerns the power and jurisdiction of the said superior court to make and enter an order in said estate, settling and allowing the final account of the executor

prior

to the filing of the said

remittitur

in the superior court.”

We are of the opinion that such question is not properly presented by the record before us. It has been held that the judgment-roll on an appeal from an order settling the account of an executor consists of the petition and account, and reports accompanying same, objection and exceptions thereto (if any), findings of the court (if any), and order settling account.