Schultz v. Brown

“When an executor or administrator declines to appeal from the allowance of a claim against the estate, * * *■ any person interested in the estate, as creditor, devisee, legatee, or heir, may appeal from such decision in the same manner as the executor or administrator might have done; and the same proceedings shall be had in the name of the executor or administrator.” Prob. Code, (Laws 1889, e. 46,) § 253. In such cases, the notice of appeal should be-signed by the creditor, devisee, legatee, or heir appealing, and state that he appeals. To affix the name of the executor or administrator as appellant, and state that he appeals, would be to state what was untrue in fact. While the last clause of the statute quoted is awkwardly expressed, yet what it undoubtedly means is that the proceedings on such appeals shall be conducted in the same manner as if the executor or administrator had appealed, and in his name. The statute is entirely silent as to what proof, if any, shall be made of the fact of the refusal of the executor or administrator. There is nothing requiring such proof to be made as a prerequisite to' the right of the creditor, devisee, etc., to appeal. It is the exist*257ence of tbefctct that gives the right, and the proof of it may be made at any time when the fact is questioned or controverted; for example, when a motion to dismiss the appeal is made. In this case the heirs filed in the district court a notice by them addressed to Brown as executor of the estate, requesting him to appeal from the allowance of this claim, accompanied by an admission of due service of the notice, and a statement that he refused to appeal, purporting to be signed by him as executor. The motion to dismiss wras upon the ground “that it did not appear that the executor or administrator had declined to appeal.” Unless implied in this general language, it does not appear that any claim, or even suggestion, was made that Brown was not in fact executor, or that his purported signature was not genuine. Under the circumstances, we think the proof was such as to justify the court in denying the motion.

Judgment affirmed.

Note. An appeal by Martin Schultz from a judgment of the district court for Meeker county, Powers, J., presiding, disallowing his claim of $639.50 against the estate of Jeanette Chevre, deceased, involved the same questions and was argued at the same time and by the same counsel as the foregoing case, and was decided in accordance with the foregoing opinion.