In Re Estate of Levy

WASTE, C. J.

Motion to dismiss appeal from an order of partial distribution upon the ground that the appellant is not a party to the proceeding nor aggrieved by the order.

The will of the decedent was admitted to probate on June 14, 1932. It bequeathed the respondents $5,000 to be equally divided among them. A person bearing the same name as the appellant was also named as a specific legatee. During the course of the probate proceeding the respondents petitioned for distribution of their legacy. The executor filed written objections thereto. Thereafter the probate court made its order granting the petition and ordering distribution to the respondents. It is this order from which the appeal has been taken.

[225]

The affidavit of the county clerk filed in connection with the respondents’ motion to dismiss avers that at the time of the hearing upon the petition for partial distribution the pleadings consisted solely of the petition and the written objections of 'the executor, nothing having been filed, by way of objection or otherwise, by the appellant. However, it appears from the affidavit of counsel filed in support of the motion to dismiss that at the time of the hearing of the respondents’ petition for distribution, counsel appeared for and on behalf of Alvira Davis and orally objected to the granting of the petition. It also appears from the latter affidavit that the order granting the petition recites that Alvira Davis appeared by counsel.

Under the circumstances, we cannot accept respondents’ conclusion that the appellant is not a party to the proceeding and therefore not entitled to appeal from the order. In our opinion, written opposition was not indispensable to constitute the appellant a party within the meaning of section 938 of the Code of Civil Procedure so as to afford her a right of appeal. Section 1000 of the Probate Code,'which provides for partial distribution and gives “any person interested in the estate” the right to resist any application therefor, is silent as to any requirement of written opposition by such “interested” person.

Estate of Murphy,

145 Cal. 464, 468 [78 Pac. 960], and

Estate of Kearney,