In re the Estate of Smith

Mount, J.

This appeal is from an order of the lower court approving the final account of the administrator of the estate of Kate Smith, deceased, and finally closing that estate. At the time the final account of the administrator was filed, the executor of the estate of Samuel Chellew, deceased, filed objections to the final settlement because of an unpaid claim of $36.90, and because of certain litigation which had been pending between the two estates. On a hearing of these objections to the final account of the administrator of the estate of Kate Smith, deceased, it appeared that, while the claim for $36.90 and costs was disputed, the amount of these costs had been deposited with the clerk to abide the result of the dispute. The record also shows that thereafter this dispute was settled and the amount was paid. It also appeared, at the time of the hearing of the final account, that the litigation referred to had been determined by the lower court and that a notice of appeal had been given from its final judgment therein. The trial court thereupon settled the final account and ordered distribution of the estate. This appeal was taken from that order by the executor of the estate of Samuel Chellew, deceased.

Appellant argues that the court erred in settling the account and estate because of the provisions of § 179 of chapter 156 of the Laws of 1917, p. 693, which provides as follows:

“If there be any contingent or disputed claim against the estate, the amount thereof, or such part thereof as the holder would be entitled to, if the claim were established or absolute, shall be paid into the court, where it shall remain to be paid over to the party when he shall become entitled thereto; or if he fail to establish his claim, to be paid over or distributed as the circumstances of the case may require.”

The item of cost above referred to was deposited as required by this section. If the litigation referred to may be said to be a contingent or disputed claim, that claim was adjudicated and disposed of, so far as the lower court was concerned, at that time. If the notice of appeal revived the disputed claim, we are at a loss to see wherein appellant was aggrieved by the final order settling the estate, because the next section of the act of 1917 (p. 691, § 180) provides:

“A final settlement of the estate shall not prevent a subsequent issuance of letters of administration, should other property of the estate be discovered, or if it should become necessary and proper from any cause that letters should be again issued.”

So that no right was lost to appellant should he be successful on the appeal in that case.

The order appealed from is therefore affirmed.

Holcomb, C. J., Tolman, and Bridges, JJ., concur.