In re the Estate of Herteman

McFarland, J. — This is an appeal by E. Chaquette, administrator of the estate, from an order settling his final account, from the decree of distribution, and from an order refusing to act upon the administrator’s motion for a new trial.

The partiqular items of the account with respect to which appellant contends that the court erred are these: 1. The item of $415 charged by appellant as money paid to a partner of the deceased to cover loss in running a hotel, and disallowed by the court. Whether such a charge could be allowed under any circumstances it is not necessary to decide, because there was no sufficient evidence of the item. 2. Appellant was charged with $501.89, the value of certain real property lost to the estate by the neglect of appellant to pay taxes, etc. We see no error in this ruling. 3. Appellant claimed a cor[547]rection of six hundred dollars in a former account, rendered several years before, which was not allowed. We cannot see that the court erred in holding that there was not sufficient evidence to warrant this correction. 4. Seven hundred and forty-two dollars interest on money of the estate drawn by appellant and mingled with his own funds, and omitted from his account, and charged to him by the court. This was in accordance with well-settled principles; and there was no error in the ruling. The appeal, therefore, from the order settling the account presents no grounds for a reversal; and the appeal from the decree of distribution stands on the same footing.

2. After the order settling the account was made, the appellant filed and served a notice ' of intention to move for a new trial, and prepared and served a statement of the case. The contestants thereupon objected to the settlement of any statement, and to any proceeding on said motion, on the ground that the provisions of the code relating to new trials were not applicable. The court sustained the objection, and declined to hear, or in any way act on, said motion. If it was the clear duty of the court to settle the statement, and act upon the motion for a new trial, mandamus to compel such action would have been the proper remedy; but this non-action of the court — this nothing — cannot be reviewed on a general appeal of the case.

It may be remarked, however, that it is doubtful if the true construction of that part of the Code of Civil Procedure relating to probate matters is, that every contested motion in probate proceedings assumes the character of a civil action, with all the attendants of a right to a jury trial, motion for new trial, etc. Such a construction would greatly confuse and prolong the settlement of estates,—a matter already sufficiently complicated. The subject is discussed to some extent in the opinion of Mr. Justice Temple, in the case of the Estate