Estate of McKinley

49 Cal. 152

Opinion

Chief Justice Wallace,

speaking for the Court, said: This is an appeal by the petitioner from an order dismissing his petition for the payment of a claim that had been allowed and approved. The claim so allowed had the force and effect of a judgment. The action of the Court in allowing the claim has not been questioned by appeal, but the respondent opposes the payment of the claim, not on the ground of fraud or mistake, but because—as the specification of objections alleges—the services of the petitioner were not worth the amount charged by him and allowed by the administrator (the respondent here) and by the Probate Judge. We are of the opinion that that is not a sufficient ground for refusing to order the payment of the claim.

The absence of the testimony from the record is immaterial, for the reason that under the allegations in the pleadings it could not possibly aid the respondent. The objections to the payment of the claim, as set forth by the administrator in pleading, being insufficient in themselves, it cannot be intended, even in the absence of the evidence that the Court below found some other fact not relied upon in the pleading, but which if it had been pleaded, would have justified the judgment of that Court.

Order reversed and cause remanded.