
    Wood v. Wood et al.
    
      Appeal. — Decedents’ Estates.- — A judgment setting aside an order of distribution of the surplus on the settlement of a decedent’s estate is not a final judgment, and an appeal will not lie therefrom to the Supreme Court.
    From the Fountain Circuit Court.
    
      G. McWilliams and J. Ristine, for appellant.
    
      J. W. Copner, 8. F. Wood and H. H. Doohterman, for ■appellees. »
   Biddle, C. J.

John Wood made his will, in which he made certain provisions for his wife, Nancy Wood. After the death of John, Nancy renounced her rights under the provisions of the will, and elected to take under the law of descents. On her petition, the court ordered the clerk to pay to her one-third of the moneys in his hands, collected for distribution. Under this order, she received one thousand six hundred and eighty-three dollars and forty cents. After-wards, the heirs of John Wood, the appellees, filed a complaint, alleging various grounds, praying the court to set aside the order of distribution, and requiring her to pay back the money so received. Several paragraphs of answer were filed, all of which were finally withdrawn, except the “first ■and last paragraphs,” to which demurrers'were sustained for want of sufficient facts, and exceptions taken.

The record then goes on to say, that “ the cause being submitted to the court for trial, the court finds that plaintiffs .ought to have judgment against the defendant, setting aside the order of distribution heretofore made.”

Judgment was rendered accordingly, that the order “ be set aside and held for nought,” and for costs against the appellant.

From this judgment the appellant appeals to this court.

We do not think it is a final judgment, from which 'an appeal will lie.

In a late case, Goodwin v. Goodwill, 48 Ind. 584, it was held that no appeal would lie from a partial settlement of an administrator or executor.

The judgment in this case has no other effect than to set aside the order of distribution, leaving the estate of John Wood as though no distribution had been made. It is merely granting a rehearing on the order of distribution.

We cannot decide whether the court has erred or not. Perhaps on a rehearing and a final distribution there maybe nothing in the record of which the appellant will desire to complain. Farrel v. The State, 7 Ind. 345; Branham v. The Ft. Wayne, etc., R. R. Co., 7 Ind. 524; Miller v. The State, 8 Ind. 325; Woolley v. The State, 8 Ind. 377; Reese v. The State, 8 Ind. 416; Reese v. Beck, 9 Ind. 238; The State v. Fly, 11 Ind. 313; Spaulding v. Thompson, 12 Ind. 477; Martindale v. Brown, 18 Ind. 284; The State, ex rel. Nave, v. Wilson, ante, p. 96.

The appeal must be dismissed. Judgment accordingly.  