#### KIRK et al., Respondents, *v.*BAKER et al., Appellants.

(No. 1,390.)

(Submitted November 21, 1901.

Decided December 16, 1901.)

*Executors and Administrators*— Real *Estate*— Sale—Notice *to . Heirs*— *Proof of Heirship*— *Necessity*— *Administrator’s Liability.*

Real estate of a decedent was sold by an administrator under order of tbe probate court. Thereafter certain persons claiming to be heirs of the deceased, and therefore entitled to a share in the land, claimed their share of the proceeds of the property from the administrator on the ground that they had no notice of the sale, or of the proceedings therefor; and, he having refused to pay thém, their claim was paid by the purchaser, whereupon he sued tne administrator- and his sureties to recover the amount so paid, the complaint alleging that there was no mention made of the alleged heirs, or of their claims, at any time or anywhere in tne probate proceedings or record. *Held*that, since the administrator was not required to take notice of the claims of such'heirs until their heirship had been established as prescribed by Code of Civil Procedure, Title XII, Chapt. 10, Art. II, and the complaint alleged that no such proceedings had been had, plaintiff was not entitled to recover.

*Appeal from District*Court, *Gallatin County ; F. K.*Arm*strong, Judge.*

Action by T. S. Kirk and another against H. B. Baker and others. Erom a judgment in favor of plaintiffs, and from an order denying a new trial, defendants appeal. ■

Reversed.

*Messrs. Luce &*Luce, for Appellants.

*Mr. Eugene B.*Hoffman, for Respondents.

MR. JUSTICE MILBURN

delivered the opinion of the court.

This is an appeal from a judgment in favor of plaintiffs and from an order denying defendants’ motion for a new trial. The action was brought by plaintiffs and respondents to recover of *191H. B..Baker, as administrator of tbe estate of Nancy F. Baker¿ deceased, and one. W. Bailey and Mrs. S.; Niles Baker,. sureties pn tbe official bond of tbe administrator, tbe sum of $256, alleged to be due plaintiffs fur money paid by tbem to Arthur C. Long and Mary Wood for an alleged, one-twelftb interest wbicb tbey claimed in tbe real estate of said Nancy F. Baker, deceased. Tbe land in wbicb tbe said Long and tbe- said Wood claimed an interest was all tbe property wbicb belonged, to said estate, as appears from tbe complaint, and was conveyed by an order of tbe probate court of Gallatin county to H. N. Kirk for $3,000 on June 6, 1887, having been sold under decree of said court, and by H. N. Kirk conveyed to tbe plaintiffs.. Tbe plaintiffs claim that tbe said Arthur. C. Long and tbe said Mary Wood were'minor heirs, and that there was not any notice of the time and place of said sale given to tbem, and that said sale was made without printed or posted notice to'any one-; and that, after attaining their majority, tbey claimed from the.defendant H. B. Baker their portion of tbe proceeds arising from tbe sale of tbe property, but that said H. B. Baker refused to pay tbem tbe same; and that on tbe 18th day of January, 1897, tbe said Arthur C. Long and tbe said Mary Wood brought suit against tbe plaintiffs for a partition of tbe real estate, and that they paid said parties $250 for their said one-twelftb interest and $6 for expenses of litigation, in order to avoid the suit. In the suit at bar tbey bad judgment in tbe court below for tbe sum claimed. Tbe complaint further states that there was not any mention made of tbe two-alleged heirs, or of their claims, at any time or anywhere in tbe probate proceedings or records.

Numerous points are relied upon and urged by appellants, but we see no useful purpose in noticing more than one, *i. e.,*want of substance in the complaint.

It is obvious from tbe complaint that at no time has any one of tbe two alleged heirs or their assignees, respondents herein, appeared in tbe probate court to have bis or her status or clai.us adjudicated. It appears conclusively from the complaint that at no time has tbe probate court made any order in tbe prem*192ises, and it is therefore trae that the administrator has not disobeyed any order of the court in relation to these alleged heirs or their assigns.

An administrator, at his peril, declares persons to be interested as heirs or other claimants, and pays or delivers to them any part of the money or other property of the estate, befare such persons have been formally by the court in probate proceedings declared to be such, and before he is ordered by the court to make distribution, after report and accounts made and allowed, showing the condition of the estate. If he neglect and refuse to obey the order of the court to distribute, and not be¿ fore, is he liable upon his official bond.

In this case there is no- reason why an extended opinion should be rendered. It is sufficient to- say that Article II, Chapter XI, Title XII (Sections 2840-2841), of the Code of Civil Procedure, on Distribution on Pinal • Settlement, shows, how any person claiming an interest in any part of the estate upon distribution, whether as heir or not, may enforce his claim, and, if necessary, have his heirshipi determined; and further shows how and to whom distribution shall be made. Examination of the provisions of said article clearly shows that the plaintiffs have no cause of action under the facts stated in the complaint. It is needless to- say more in this case.

The judgment and order appealed from are reversed, and the cause is remanded.

*Reversed and remanded.*