Estate of McDougald

The appellant, Carrie B. McDougald, as administratrix of the estate of J.D. McDougald, deceased, filed an account in the superior court. The usual notice of the hearing was given, and upon the hearing the respondent, Louise E. Boggs, as executrix of the estate of John Boggs, deceased, a judgment creditor of the estate of McDougald, appeared and filed written objections to the account. Upon the contest thus raised the court surcharged the account with *Page 478 the sum of about five thousand five hundred dollars, and settled the account accordingly. In connection with the account the administratrix reported that claims had been allowed in favor of some sixteen creditors, including that of the respondent Boggs and a claim in favor of the administratrix. Upon the order thus settling the account the court further ordered that a dividend be declared upon the claims reported, and that the administratrix should pay the same out of the balance so adjudged to be on hand. Carrie B. McDougald has taken separate appeals from these orders — one in her capacity as administratrix of the estate, and the other as a creditor. None of the creditors other than Louise E. Boggs filed any…

The respondent, in a petition for rehearing, claims that the opinion in this case is in conflict with the decisions in Estate of Smith, 117 Cal. 505 ; Estate of Spanier, 120 Cal. 698 ; and Estate of Smith, 122 Cal. 462 . We think it proper to explain that there is no conflict. The cases cited do not hold that notice must be given of an application for an order for the payment of a dividend, nor that there must *Page 483 be such an application. The making of such an order is a part of the duty of the court when the appropriate stage of administration is reached. The court there held that, with the exception of interest-bearing claims provided for in section 1513 of the Code of Civil Procedure, there could be no valid order for the payment of a claim until after an order for the settlement of an account, in which the validity, rank and amount of the claims, and the balance on hand, has been adjudicated. The notice referred to in those decisions is the notice of the time and place of settling the account, and not a notice of the time of making the order for a dividend. The latter notice is not held necessary. Nor do the decisions declare that the order for a dividend must be made at…