Garret v. Lannan

HOUSER, P. J. Prom the record herein it appears that Wilson T. Garrett was the administrator of the estate of David Thomas Garrett, deceased, and that as such administrator he filed his final account for settlement thereof and at the same time prayed for distribution of the estate. On the hearing of such petition, by minute order the account was ordered “settled”; but the matter of distribution of the estate was postponed for determination for a considerable period thereafter. Before distribution of the estate was [556]ordered, respondent herein, who was a creditor of the administrator, caused a writ of garnishment or attachment to issue and to be duly served with respect to the fees which had been allowed to the administrator, in pursuance of which, in ordering distribution of the estate, the probate court in effect directed that the administrator’s fees be paid by him to the sheriff of the county, “subject to the rights of the aforementioned attaching creditor and said Wilson T. Garrett therein and thereto, and said attaching creditor, J. E. Lamían, and said Wilson T. Garrett, said Administrator, will be hereby ordered and remitted to whichsoever Court may be a Court of competent jurisdiction in this matter for a determination therein and thereby of their respective rights and priorities in and to the said fees. ... IT IS FURTHER ORDERED that any and all fees payable or to be paid to Wilson T. Garrett as Administrator of and in the above entitled Estate shall be, and the same are hereby ordered, paid to the Sheriff of San Bernardino County, California, the officer attaching the same as aforementioned, subject to the rights of the aforementioned attaching creditor and said Wilson T. Garrett therein and thereto, and said attaching creditor, J. E. Lamían, and said Wilson T. Garrett, said Administrator, are hereby ordered and remitted to which-soever Court may be a Court of competent jurisdiction in this matter for a determination therein and thereby of their respective rights and priorities in and to the said fees.”

It is from such part of the order of distribution that the administrator, as such, has appealed to this court.

As this court understands appellant, his ultimate contention is that at the instant when, by order made by the probate court and entered in the minute book thereof, his final account was “settled”, his right of ownership to the amount that was stated in his account as being due to him on account of services that theretofore had been rendered by him as administrator was thereby fixed and determined ; and that thereafter in order to invest him with authority to withdraw from the assets of the estate and appropriate to his own use the amount thus “settled”, no further order by the probate court of distribution of the estate, which order might or should include a direction to him to pay to himself the amount thus determined, was at all necessary. To .that end and as a foundation for his said contention appellant has