In re Estate of Sylvester

This is an appeal by Daniel Sylvester, executor of the last will of John Sylvester, deceased, from an order of the probate court settling the account of said executor, and from an order denying his motion for a new trial in the matter of said order.

The transcript presents rather a vague and confusing representation of the proceedings out of which this appeal arises. The executor is also the surviving partner of the deceased in a certain business; and appellant contends that the account involved here is his account as surviving partner under section 1585 of the Code of Civil Procedure, and that the probate court has no jurisdiction to settle such an account. But the account is, upon its face, the account of appellant not as surviving partner, but as executor; and the only specifications of error are that the evidence shows: 1. That the executor had no money of the estate in his hands; 2. That he had paid to the surviving wife over two thousand nine hundred dollars, for which he received no credit; and 3. That all the money received by the executor as such had been legally and properly laid out. On all these

*191 questions there was substantially conflicting evidence, and we…