
    STATE ex rel. PAUWELYN, Relator, v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 2,317.)
    (Submitted June 15, 1906.
    Decided July 6, 1906.)
    
      Prohibition — Probate Courts — Jurisdiction—Order of Sale— Stay of Execution.
    
    1. Prohibition does not lie to restrain the district court, while sitting in probate matters, from hearing the petition of one of the devisees under a will, for distribution to him of that portion of the estate specifically devised to him, even though it had theretofore made an order to sell the real property to pay the debts of the estate, the court having had jurisdiction to hear and determine the matter: (See, also, syllabus in ¡State ex rel. Pauwelyn v. District Court et al., ante, p. 345, 86 Pae. 269.)
    Application by the state of Montana, on the relation of Cyril Pauwelyn, as executor of the estate of James Tuohy, for a writ of prohibition against the district court of the second judicial district of the state of Montana, and Michael Donlan and Geo. M. Boarquin, as judges thereof.
    Writ denied.
    
      Messrs. McBride & McBride, and Mr. John J. McHatton, for Relator.
    
      
      Mr. Jno. B. Clayberg, Messrs. Maury & Hogevoll, Mr. T. J. Walsh, Mr. John A. Coleman, Mr. M. D'. Leehey, and Mr. Wm. Scallon, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Prohibition. Soon after the application to the district court referred to in State ex rel. Pauwelyn v. District Court, ante, p. 345, 86 Pac. 269, the Roman Catholic bishop of Helena, as a corporation sole, being also a devisee under the will of James Tuohy, deceased, made an application to the district court for a similar order of partial distribution. The court issued an order to show cause and an order to the executor to stay proceedings under the order.of sale until a hearing could be had. Thereupon application was made to this court for a writ of prohibition to restrain the court from proceeding further under the order to show cause, on the ground that it was proceeding in excess of jurisdiction.

The principle applied in the case of State ex rel, Pauwelyn v. District Court, ante, p. 345, 86 Pac. 269, is conclusive of this case, and under the authority of that ease the writ is denied.

Writ denied.

Mr. Justice Holloway concurs.

Mr. Justice Milburn, being disqualified, takes no part m this decision.  