In re Estate of Spanier

McFARLAND, J. This is an appeal by A. C. Freese, former administrator of the estate of Joseph Spanier, deceased, from an order of the superior court entered September 31, 1896, settling his final account as such administrator.. The transcript consists of fragments taken from the gener'al history of the administration of said estate, and does not very clearly show the facts upon which the litigation has arisen.

The appeal involves merely one item of $150, claimed to have been paid by appellant to one Charles Frank, which item the court refused to allow as a credit. The only objection made in the court below to the refusal to allow this item was, “because the same was paid by said Freese by order and direction of the said court dated April 6, 1896.”

The facts about this item of $150, as they may be dimly seen in the transcript, appear to be as follows: Charles Frank, some time in 1890, presented a claim against the estate for $505.50, for “money loaned by claimant to decedent.” The transcript contains an order of court made September 33, 1891, which, after reciting that something that is there called “the matter of the opposition to the claims” of said Frank, and of certain other claimants, had come on to be heard, orders that the claim of Frank be allowed for $150, and rejected for all the remainder of the $505.50. It is difficult to understand exactly what this proceeding was, for the code does not seem to provide for the trial of an “opposition to claims,” except upon the settlement of an administrator’s account; but, although the order is recited as having been made by “the court,” it may be treated as an order by the judge approving the claim of Frank for $150 and rejecting it for the rest. Frank did not accept the allowance of $150, but immediately brought suit in another department of the superior court against the administrator, who was then J. C. Pennie, for the whole of the claim; judgment in that suit went against appellant for the whole claim; he appealed to this court; and the appeal was still pending when the order from which the [700]present appeal was taken was made. Proceedings were instituted to remove the appellant from the administratorship of the estate, which resulted in his removal and the appointment of John W. Moffitt as his successor, who qualified on May 12, 1896. While those proceedings were pending, and while the said appeal was also pending, the court, on April 6, 1896, made an order that Freese, administrator, “immediately pay” to Frank the $150. This order recites that by the order of September 23, 1891, Frank’s claim was allowed for $150, that no part of it had been paid, that there were sufficient funds in the hands of Freese to pay it, and that the order of September 23d was in full force and effect, but does not recite that any notice of an application for the order had been given to any person, or that any person interested had appeared, or was present when the order was made; and this is the order referred to by appellant in his specification of error in the transcript as “the order and direction of the said court dated April 6, 1896.” Immediately after the making of the order appellant paid the $150 to Frank’s attorney. This was after the filing of his main final account, but for the purpose of charging this $150 thus paid he filed a supplemental account in which he placed it. On June 17, 1896, the present administrator, Moffitt, filed a verified petition to have said order of April 6th set aside upon various grounds; and, after a hearing, the court, on July 30, 1896, made an order canceling and vacating said order. We have stated the foregoing facts because counsel in their briefs refer to them; but in our view many of them are immaterial.