Succession of Price

On Motion to Dismiss the Appeal. This is an appeal from a judgment dismissing an opposition to the probate of a will and rejecting a demand to annul the will. The appellee, who is named in the will as testamentary executor, has moved to dismiss the appeal, on the ground, first, that there is no allegation nor proof that the value of the estate exceeds $2,000; and, second, that the appellants asked for and obtained an order for a suspensive appeal only, and the law does not allow a suspensive appeal from a judgment appointing or confirming an administrator or executor, or from a judgment which, in effect, allows an executor to take charge of and administer the estate.

The inventory and appraisement of the estate amounts to $6,301.48, consisting of $3,400 worth of real estate and $2,901.48 of personal property. The appellee has filed a motion to have the inventory and appraisement eliminated from the transcript of appeal because the inventory and appraisement were not filed before the appeal was taken. The inventory and appraisement were ordered to be made when the appellee, as executor, petitioned the court to admit the will to probate, but the inventory and appraisement were not filed until the day after the appeal bond was filed. The fact that the inventory and appraisement were not filed before the appeal was taken is no reason why we should not be allowed to refer to the document to see that the value of the estate is sufficient to give us jurisdiction, that is to say, above $2,000. According to the second paragraph of section 10 of article 7 of the Constitution 1921, this court has original jurisdiction over questions of fact to determine whether the court has appellate jurisdiction in any case before it. Therefore, if the inventory and appraisement were not in the record, we would be warranted in directing that a copy of the document be sent here to determine whether this court or the Court of Appeal has jurisdiction in the case. The appraisement shows that this court has jurisdiction.

There is no merit in the second ground for the motion to dismiss the appeal. The fact that the appeal may not prevent an administration of the estate while the appeal is pending is no reason why the appeal should be dismissed. It is valid as a devolutive appeal.

The motion to dismiss the appeal is overruled.

On the Merits.