Estate of Wilson v. Drown

HENSHAW, J.

The court made its order of publication of notice to creditors in the above-entitled estate in due form as required by law. The administrator caused said notice to be published in accordance with the order and with sections 1490-1491 of the Code of Civil Procedure, directing the

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presentation of claims within four months after such publication, and upon the usual proofs,

ex parte,

the court made its decree establishing that due notice to creditors had been given.

Laura Le Tourneux was an alleged creditor of the estate. She failed to present her claim within the four months prescribed in the notice, but did present it within ten months. Moreover, she made application to the court in probate, based upon affidavit, to vacate its decree establishing due notice to creditors, asserting that the value of the estate exceeded ten thousand dollars, and the court, after hearing, made its order vacating that decree, stating in the order of vacation that it found the estate to be in value greater than ten thousand dollars. The administrator, resting upon the sufficiency of the publication already made, did nothing further until, the time arriving for the final settlement and distribution of the estate, he filed his petition in due form, seeking the settlement of his account and distribution of the estate, and asking that a decree should be entered establishing due notice to ■creditors. This matter was heard by the court, and the showing was indisputable that the estate did not and never had ■equaled in value the sum of ten thousand dollars. The court so found, and further found that the publication of notice to creditors had in all respects been duly made in accordance with law, and again made its decree establishing that due notice to creditors had been given. Laura Le Tourneux’s claim was in litigation; the very obvious effect of the. decree was to deprive her of all standing in that litigation, because, admittedly, she had not presented her claim within the four months required by law, if, in truth, the estate was of less value than ten thousand dollars. Accordingly, she appeals. Her contention upon the appeal is, that when the court made its ■order vacating its first decree establishing due notice to creditors, it found that the estate exceeded in value ten thousand •dollars, that this finding was absolute and determinative of the question, that all parties were foreclosed by the finding, and that it was not a question open for future and later consideration.