
    
      In the matter of the Appeal of Lewis Bigge, as Administrator of the estate of Philip Behrens, deceased.
    
    Administbatob — Settlement of Account — Premature Appeal. Before an appeal can be taken from the action of the probate court on any part of the final settlement of an administrator, it' must appear that the probate court has taken final action on the settlement, and has passed on the whole account presented.
    
      Error from Boohs District Court.
    
    The. opinion states the case.
    
      M. C. Beville, for plaintiff in error.
   The opinion of the court was delivered by

AlleN, J.:

On the 9th day of July, 1888, Lewis Bigge, as administrator of the estate of Philip Behrens, deceased, presented to the probate court of Rooks county an unverified statement, purporting to be an account of his administration of said estate. No action, however, was taken by the court thereon. Afterward he gave due notice of final settlement, and on June 3,1889, presented to said court what purported to be a final account of his administration, containing a number of items, among which, is included, “By balance due last [July 9, ’88] settlement, $164.77.” In the settlement first filed is the item “Cash to balance %, $162.77.” The hearing on the final settlement was continued to July 20, 1889, when the court made an order disallowing certain charges for interest, commission, and services, and allowing in lieu thereof 5 per cent, on the amount of money collected. Thereupon the administrator appealed to the district court. After testimony had been introduced by both sides, the district court found that the probate court had not passed upon nor finally considered said settlement as a whole, and that the same was still pending in the probate court undetermined, and thereupon ordered said appeal to be dismissed.

There is nothing in the record showing final action by the probate court of Eooks county on auy other matters included in the settlement than the specific items disallowed, nor does the oral testimony offered in the district court show final action to have been taken by that court. It therefore follows that the district court ruled correctly in dismissing the appeal.

Though it is not necessary to a decision of the case presented, we remark that the administrator’s appeal appears to us without merit. Judgment affirmed.

All the Justices concurring.  