Weihe v. Statham

Ross, J. 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 [85]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.

McKinstry, J., and McKee, J., concurred.