Estate of Calahan

Opinion

The Court:

This is an appeal from an order of the Superior Court vacating a decree of distribution and settlement of the final account of the executor.

The first question, that arises is whether that is an appeal-able order. The Code (§ 963, C. 0. P.) provides in what cases an appeal may be taken from a Superior Court to the Supreme Court.. The cases are divided into three classes: 1. Final judgments of Superior Courts; 2. Certain enumerated orders and interlocutory judgments; 3. From certain specified judgments or orders made in probate proceedings.

It is quite clear that the first and second classes embrace judgments and orders other than those made in probate proceedings, and that the third class embraces only such as are made in such proceedings. And the order from which this appeal is taken is not among those enumerated in the third class. Among those enumerated in this class are judgments or orders “ settling an account of an executor or administrator,” and “refusing, allowing, or directing the distribution of an estate or any part thereof.” But no mention is made of an order vacating any such order. There is a provision in Subdivision 2, for an appeal “from any special order made after final judgment.” But we think that the final judgment there referred to is the one mentioned in Subdivision 1, viz.: “ A final judgment in an action or special proceeding commenced in a Superior Court, or brought into a Superior Court from another Court.” It seems to us quite clear that the appeal-able judgments and orders made in probate proceedings, are all enumerated in Subdivision 3, and as this order is not therein mentioned, it is not an appealable order.

Appeal dismissed.