618 BENEUX V. BENEUX. [190 BENEUX V. BENEUX. 4-3782 Opinimi delivered March 118, 19'35. ERECUTORS AND ADMINISTRATORS—APPEALS. — Under Crawford & Moses' 2258, providing that tiny "aggtieved party" may within • 12 months appeal from judgmerits of the probate court, and that any heir, devisee, legatee or judgment-creditoi may appeal therefrom within six months, held that where a judgment-. creditor has made himself a party to an administrator's settlement by . filing exceptions thereto, he was entitled to appeal within twelve Thonths froth the order of the probate court approving the administrator's settlement. 2. COURTS—PROCEDURE IN PROBATE coun—PRESUMPTION.—Where the record of the probate court on a certain date recited that the court met pursuant to adjournment, the presumption will be
ARK.] BENEUX V. BENEUX.• 619 indulged-that it was properly in session; in absence of a showing to the contrary. APpeal frOm. • Crawford Circnit Court 0.
canitoit; Judge-i•reversed.. $tarbird & *gtarbird, fel. ' appellant. Partain, & A.:gee, for aPpelleeS. MCHANEY, J. Only 'two- questiona are presented •thr our consideration by this - appeal. The first • is that the aPpeal from the order of 'the Probate'Conrt, where the case originated, was not perfected within six Months;'and should therefore have been dismissed. The second is that the probate court was not in session. on Mara 20, 1933, the date on which the appeal was granted, and that therefore the • appeal was ' not granted by the cOtirt lnit by the'judge. • • • • • • •''. • APpellant iS the' administrator of the eState of H. A: Beneux, and: appellees • are judgment creditors of Said estate. APpellant • filed -his report as administrator, •and appellees' 'filed their • exceptions thereto. - 'These -exceptions were • heard by • the- probate Court,. and..an order . or judgment Was' entered' Overruling appellees eiceptionS on the 19th day of September, 1932. : On March 20, 1933, ohe day more than six months 'after the overruling of said exceptions, appellees presented to -thp court • or •the judge thereoftheir bond . for cOsts and affidavit for appeal to the cirCilit 0-art, which *was granted. The record in the probate . cOUrf Was filed with 'the Clerk of the circuit court, .and• appellant:moved to disniiss the apPeal oh the gronnds abeve stated. The court-overruled Said motion. On a hearing before • the eircnit court, said court allowed certain of the . exceptions- of the appellees and overruled certain others and' surcharged the administrator's ac-connt aceordinglY, and ordered same certified to theele'rk of' the probate court. Front this' order and judgment; this appeal is prosecuted; and the 'two cinestions firSt above mentioned. are presented .• f in- • 6 . ansideratiOh.. . 1. As to the 'contention-that . the appeal shmild have been-dismissed because not taken' within six Months. Sec: tion 2258 of Crawford . 8t Moses . " Digest provides :"Appeals may be taken to the circuit court from all final orders and judgments Of the 'probate court .-at any' time
620 BENEUX V: BENEUX. [190 within twelve months after the rendition thereof by the party aggrieved filing an affidavit and prayer for appeal with the clerk of the probate court, and, upon the filing of such affidavit, the court shall order an appeal at . the term at which such judgment or order shall be rendered, or at any term within twelve month§ thereof. " ' And any heir, devisee, legatee or judgment-creditor of -an estate, who feels aggrieved, may at any time within six months after the rendition thereof prosecute an appeal to the circuit court," etc. It is appellant's contention that, since appellees are judgment-creditors of said estate, they have only six months in which to take an appeal. We cannot agree with this contention. Appellees made themselves parties to the proceedings in the probate court when the administrator . filed his account, by filing exceptions thereto and trying the same out before the probate court. They ,be, came parties to the action, and under the plain terms of the statute had twelve months in which to appeal. The fact that they were judgment creditors could make no difference if in fact they were parties to the action. Prior to act 327 of 1909, page 956, there was no provision in the statutes for an appeal to be taken by any person not a party to the record. In. the case of Hall v. Rutherford, 89 Ark. 553, 117 S. W. 548, this court held that : "One claiming some interest in an estate but who is not a party, but. a stranger, to the record, in the probate proceedings in the allowance of a claim against the estate, cannot appeal therefrom to the circuit court." This deCision was rendered March 15, 1909, and at that same session of the Legislature the above-mentioned act was passed amending § 1.348 of Kirby's Digest, which, in its amended form, now is in the digest as § 2258 of Crawford & Moses' Digest. The provision with reference to "any heir, de-visee, legatee or judgment creditor of an estate" gives them the right of appeal within six months, and thereby preserves their rights for said period, even though not a party to the record. Just why the Legislature should see proper to . make this distinction between parties to the record and strangers thereto, we do not undertake to say ; but it had the power to . make such distinction, and it is
not for the courts to question the wisdom thereof. The case relied upon by appellant, that of Stricklin v. Gallo-wa,y, 99 Ark. 56, 137 S. W. 804, was an appeal by an heir who had not made himself a party to the record. Therein lie§ the distinction. 8ee also Miller v. Fearis, 184 Ark. 858, 44 S. W. (2d) 343 ; Smith & Shoptaw v. Stanton, 187 Ark. 447, 60 S. W. (2d) 183 ; McKenzie v. Crowley, 119 Ark. 185, 177 S. W. 873 ; Morris v. Raymond, 132 Ark. 441, 201 S. W. 116. It is therefore clear that -appellees prosecuted • their appeal in apt time. 2. As to the second contention that the probate court was not in session on March 20, 1933, the date the appeal was granted, we think appellant is. again wrong. The probate record shows that the court was in session on March 11, 1933, and transacted business on that day, and no adjourning order was Made. The record further shows that on March 20, "the probate court of Crawford County, Arkansas, met pursuant to adjournment." On that date the appeal herein was granted. There is no record of what transpired between the 11th and the 20th days of March. Presumably, the court was in session as no adjourning order was made on March 11. Entry of March 20th shows it met pursuant to adjournment. Therefore the presumption will be indulged that it was properly in session on said day in the absence cif a showing that it was not in session. , We think this is conclusive, in the absence of a showing to the contrary, that the court was in session when the appeal was granted. No error appearing, the judgment is affirmed. .
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.