By the Court,

It appears that the commissioners appointed by the Judge of Probate, to examine and allow claims against the estate of Kolette, made an allowance in favor of the American Fur Company, of nine thousand nine hundred and twenty-four dollars and eight cents. Their report to the Judge of Probate was made the 23d day of June, 1845, and on the 29th day of September of the same year, the judge ordered a dividend of one and one quarter per cent. on all the sums allowed by the commissioners, except this one to be paid by the executrix. The order of the judge recites that the executrix had taken exceptions to the report of the commissioners on the allow-anee of this claim, and directs, that the dividend upon it, be retained until the decision on said appeal. It *341further appears, that on the 11th day of May, 1841, the company filed a motion, in the Probate Court, for an. order, directing the executrix to pay the dividend upon the allowance made to them by the commissioners, and that the motion was overruled. It further appears, that the order overruling the motion was appealed from on the 12th day of June, 1841. At the hearing of this appeal in the District Court, the court ordered the dividend to be paid to the company by the executrix, and the question before us, is, whether this order is erroneous.

It appears that the Judge of Probate misconceived entirely the law applicable to the case, when he directed the executrix to retain the dividend upon the sum allowed to the company by the commissioners, until the decision on the appeal, because there could be no appeal from their allowance. The statute in force at the time, (Ter. Stai. 303, § 34, 35,) provided, that in case the executor or administrator should be dissatisfied with any creditor’s claim allowed by the commissioners, and should give notice thereof to the probate office and also to the creditor within twenty days, the claims should be struck out of the commissioners report, unless the creditor prosecuted his claim at the common law, or unless by mutual agreement, the matter in dispute was submitted to referees. The sections of the statute referred to, contain clear and unambiguous directions as to the course to be pursued by a creditor, or by an executor or administrator who is dissatisfied by the allowance or rejection of a claim by the commissioners ; and that course is, on the part of the creditor, to give notice at the probate office within twenty days after the report of the commissioners is filed, and bring his action at the common law as *342as may be; and on tbe part of tbe executor or administrator, to give notice as above stated at tbe probate office, and also to tbe creditor. ■*"

We think, therefore, that tbe order of tbe 29th of September, 1845, was clearly erroneous, so far as it directed tbe executrix to retain tbe dividend upon tbe allowance made by tbe commissioners to tbe company. In case tbe executrix gave notice at tbe probate office, and to tbe company, within tbe twenty days limited by tbe statute, that she was dissatisfied with tbe allowance made by tbe commissioners, (as tbe company did not commence a suit at tbe common law, and tbe matter in dispute was not submitted to referees) it was tbe duty of tbe Judge of Probate tbe strike tbe sum allowed to them, from tbe report of tbe commissioners.

But if no such notice was given by tbe executrix, tbe judge should have directed her to pay tbe company tbe sum allowed to them. This order of tbe Judge of Probate being thus erroneous, tbe next question to be considered is, whether tbe parties were precluded from taking further proceedings to determine tbe matter in controversy, while this order was permitted to stand, and while no attempt was made by either party to obtain a reversal of it by an appeal, and that, as no appeal was taken from it, tbe subsequent proceedings on tbe part of tbe company have all been erroneous. But it is to be observed,.that tbe order contemplated only a temporary disposition of tbe money. It did not purport to be, and was not in its nature, a final decision of tbe matter in dispute between tbe parties.

Tbe judge erroneously supposed that an appeal lay from tbe decision of tbe commissioners, and this part *343of his order of the 29 th of September is founded upon this mistake. _

We think that the neglect of these parties to appeal from this order of the Judge of Probate, affecting, as it did, the custody of the money merely, during the pendency of the proceedings to determine the rights of the parties in relation to it, and not being an adjudication upon those rights, did not preclude them from proceeding, in any proper mode, to have those rights determined. As the case stands, those rights' depend upon a single fact. The company did not prosecute their claim at the common law, and their right to the dividend depends upon the fact of notice being given at the probate office, and also to them, by the executrix, within the time limited by the statute, that she was dissatisfied with the allowance made by the commissioners.

The next question in the case is, whether there is any evidence that this notice was given. The fact that she gave notice at the probate office may be inferred from the recital contained in the order of the judge, that she had taken exceptions to the report of the commissioners ; but there is no evidence, that we have been able to find, that notice was given to the compar ny, as the statute prescribed. This fact, it was the duty of the executrix to establish by evidence, and failing to. do so, the conclusion is irresistible, that the Judge of Probate should have ordered her to pay the money to the company.

The only remaining question is, whether the proceedings taken by the company to obtain an order directing the executrix to pay the money to the company have been regular.

We see no irregularity. The motion made on the *344day of May, 1847, in the Probate Court, was a proper mode of obtaining the order, and when the motion was overruled by the Judge of Probate, an J ° ' appeal was duly taken to the District Court of the Territory, in accordance with the law then in force. (Ter. Stat. 297, § 55.) The District Court having the case before it by appeal, made the order, directing the executrix to pay over the money to the company, as should have been done by the Judge of Probate. In our opinion, this order was correct, and must be affirmed.