Miller v. Superior Court

An action was begun in the superior court for a personal judgment against Jared II. Miller and Cecil A. Miller. The suit is based upon the claim that one George Miller presented a claim against the estate of Mary Moore Miller, deceased; that at that time Jared II. Miller was the executor of this estate and as such approved and allowed claim, which was also allowed and approved by the judge of the probate court. It is further alleged that all of those mentioned except the judge conspired and acted together to defraud the estate of Mary Moore Miller, deceased. In this proceeding we are asked to enjoin the superior court from proceeding with that action.

The complaint contains no allegation that the executor has rendered an account.

It may be that if a contest were properly interposed when Jared H. Miller’s account as executor is presented for settle ment, the prohate court might vacate its order approving and allowing the claim and charge the executor with the amount of it and with interest. However, under these circumstances, there is nothing in the case of Weihe et al. v. Statham et al., 67 Cal. 84 [ 7 Pac. 143 ], cited by petitioner, which declares that this is the sole remedy…