Securities Investment Co. v. Donnelley

OPINION

By the Court,

Zenoff, J.:

Following the death of Wilbur Clark the executors of his estate simultaneously sought and obtained court authority to continue the decedent’s business. Acting on this authority the executors as representatives of the estate guaranteed a corporate obligation of W. C. Austin, Inc., a corporation in which the decedent was a stockholder.

The corporation defaulted and the creditor, after foreclosure proceedings on the chattel mortgage property, seeks recovery of the balance, $119,785.86, from the estate based on the guaranty instrument. The creditor in this instance directly petitioned the court for an order instructing the executors to treat the amount due as an expense of administration entitled to priority and to pay that amount forthwith.

The lower court rejected the creditor’s claim and denied the petition. This appeal resulted; the creditor contends that the obligation is entitled to priority payment.

Since the validity of the creditor’s claim has never been properly established the matter of priority is not ready for appeal. If the claim is not valid as a charge against the estate no question of priority can exist. For us to decide that issue now might well make our decision advisory which we are neither empowered nor desirous to do. The appeal is premature.

Remanded for proceedings consistent with this opinion.

Thompson, C. J., Collins, Batjer, JJ., and Gezelin, D. J., concur. Mowbray, J., being disqualified the Governor commissioned the Honorable Emile J. Gezelin to sit in his place.