KENNARD, J., Dissenting. It has long been settled, not only in California but elsewhere, that a fiduciary (such as the trustee of a trust or the personal representative of a decedent’s estate) administering property on behalf of multiple beneficiaries must act impartially towards all the beneficiaries and must not favor, or expend funds litigating, the interest of one beneficiary over another. The fiduciary may not take sides when a dispute arises as to the relative rights and interests of various beneficiaries, and may not work to advance or oppose the claim of any beneficiary.
For that reason, it has also long been held that, once a court has determined the shares to which various beneficiaries are entitled, a fiduciary has [1087]no standing to appeal that decision. Appeals are limited to the aggrieved, and a fiduciary, being indifferent to which beneficiary prevails in the dispute, is not aggrieved by the court’s resolution of the dispute. It is those beneficiaries whose own interests are adversely affected by the court’s decision who are aggrieved and who may appeal. Accordingly, this court has previously held that an executor may not appeal an order determining whether a beneficiary’s actions are a contest within the meaning of a no contest clause because that question only presents the competing claims of various beneficiaries to share in the property administered. (Estate of Murphy (1904) 145 Cal. 464, 467 [78 P. 960].)
The majority in this case discards this governing principle of trust and estate law and overrules Estate of Murphy, supra, 145 Cal. 464. Instead, misreading both our case law and the relevant statutes, the majority holds that a trustee may appeal from a trial court’s determination, under Probate Code section 21320, of whether a beneficiary’s proposed action falls within the no contest clause of the trust, and may do so even when none of the other beneficiaries objects to the trial court’s determination.1
I dissent because the majority’s holding is contrary to the settled and well-reasoned rule, which the majority does not question, that a fiduciary may not appeal from an order determining the relative rights of beneficiaries to share in the property administered by the fiduciary. A section 21320 proceeding only determines whether a beneficiary will forfeit his or her share if the beneficiary takes the proposed action; as such it only affects the relative shares of various beneficiaries. The only parties aggrieved are the other beneficiaries whose shares of the trust would increase if the beneficiary in question forfeited his or her share under the no contest clause.
By permitting trustees to appeal from section 21320 determinations, thereby to oppose the interest of one beneficiary and favor the interests of the remaining beneficiaries, the majority seriously erodes the fundamental fiduciary duty of impartiality among beneficiaries. Furthermore, the majority’s misreading of the cases and statutes it relies on will needlessly unsettle probate law. Finally, the majority’s holding will foment needless appeals by permitting the trustee to appeal at the expense of the trust even when none of the beneficiaries object to the section 21320 determination.
I
Donald R. Scott Goulet established an inter vivos trust. Among the beneficiaries of the trust is Esther Montello. The trust contains a no contest [1088]clause under which any beneficiary of the trust who “contests in any court the validity of this trust or of the Settlor’s Last Will or seeks to obtain an adjudication in any proceeding in any court that this trust or any of its provisions or that such will or any of its provisions is void, or seeks otherwise to void, nullify, or set aside this trust or any of its provisions” will thereby forfeit his or her interest under the trust.
Goulet died. Goulet’s will made his trust the devisee of his estate. John J. Ferry is successor trustee of the Goulet trust and has also been appointed executor and special administrator of Goulet’s estate. Like the Goulet trust, the will also contains a no contest clause, which provides that any beneficiary under the will or lawful heir who “in any manner, directly or indirectly, contests this will or any of its provisions” forfeits any interest he or she has in the estate.
Under section 21320, a beneficiary of a written instrument containing a no contest clause “may apply to the court for a determination whether a particular motion, petition, or other act by the beneficiary . . . would be a contest within the terms of the no contest clause.”2 (§ 21320, subd. (a).)
Montello has a contractual creditor’s claim against Goulet’s estate. Montello applied to the trial court under section 21320 for a determination as to whether filing her claim with the estate would be a contest within the meaning of either the no contest clause of the will or the no contest clause of the trust. Ferry opposed Montello’s application in his capacity as special administrator of Goulet’s estate. The trial court held that Montello’s proposed action was not a contest within the meaning of either no contest clause. Ferry filed a notice of appeal. Applying this court’s decision in Estate of Murphy, supra, 145 Cal. at page 467, as well as the decision in Smith v. Esslinger (1994) 26 Cal.App.4th 579 [31 Cal.Rptr.2d 673], the Court of Appeal dismissed his appeal, finding that he did not have standing to appeal because he was not aggrieved by the trial court’s order.
We granted review limited to the question of whether a trustee has the right to appeal a trial court’s order under section 21320 determining that a trust beneficiary’s proposed action is not a contest within the meaning of the no contest clause of the trust.
[1089]II
I begin with the statutory structure authorizing appeals from a trial court’s order under section 21320 determining whether a beneficiary’s proposed action amounts to “a contest within the terms of the no contest clause.” Title 13 of the Code of Civil Procedure, starting with section 901, governs appeals in general. Within title 13 of the Code of Civil Procedure, subdivision (a)(10) of section 904.1 provides that “[a]n appeal may be taken [¶] . . . [¶] From an order made appealable by the provisions of the Probate Code or the Family Code.” Turning to the Probate Code to see what orders it makes appealable, subdivision (q) of section 7240 provides that “[a]n appeal may be taken from [an order] [¶] . . . [¶] Determining whether a specific beneficiary action constitutes a contest under Chapter 2 (commencing with Section 21320) of Part 3 of Division 11.” Thus, a section 21320 order is an appealable order.
As this court noted in Estate of Kessler (1948) 32 Cal.2d 367, 369 [196 P.2d 559], however, determining that an order is appealable does not answer the question of who may appeal it. For that, we must look to another part of title 13 of the Code of Civil Procedure, section 902, which provides that “Any party aggrieved may appeal in the cases prescribed in this title.” As the majority agrees, Code of Civil Procedure section 902 governs whether a trustee has standing to appeal from an order under section 21320. The issue in this case is therefore whether a trustee is aggrieved within the meaning of Code of Civil Procedure section 902 by an order under section 21320 determining that a trust beneficiary’s proposed action does not amount to a contest under the no contest clause of the trust.
The law governing when a fiduciary is not aggrieved by a court order, and is therefore precluded from bringing an appeal, has been well settled for more than a century. This court has long held that a fiduciary administering property for the benefit of several beneficiaries is not aggrieved by an order determining the share of each beneficiary in the property. (Estate of Ferrall (1948) 33 Cal.2d 202, 204 [200 P.2d 1, 6 A.L.R.2d 142] [“the rule that trustees acting in their representative capacities cannot by an appeal litigate the conflicting claims of beneficiaries” “prohibit[s] appeals by a trustee from orders merely determining which beneficiaries are entitled to share in a particular fund”]; Estate of Kessler, supra, 32 Cal.2d at p. 369 [“[A]n executor or administrator is not an ‘aggrieved’ party entitled to appeal from a decree of distribution determining the share of each of the various claimants in the estate of a decedent.”]; Estate of Babb (1927) 200 Cal. 252, 255 [252 P. 1039] [An executor “is not a party aggrieved by a decree of distribution determining the rights of several devisees to the estate of the [1090]testator . . . In re Welch (1895) 106 Cal. 427, 429 [39 P. 805] [“[A]n executor or administrator has in general no such interest in the conflicting claims of heirs and devisees as will warrant his appeal from adjudications fixing their rights, and distributing the estate accordingly. [Citations.] [¶] The rule as declared by these cases does not admit of question.”]; Roach v. Coffey (1887) 73 Cal. 281, 282 [14 P. 840]; Bates v. Ryberg (1871) 40 Cal. 463, 465-466 [“The executor, however, does not represent any of [the heirs and devisees], as against the others, and if they are satisfied with the distribution he cannot complain because some have received less than they are entitled to. He cannot litigate the claims of one set of legatees as against the others at the expense of the estate.”].)
This understanding that a fiduciary is not aggrieved by an order determining the entitlement of various beneficiaries is as old as the statutory provision limiting appeals to aggrieved parties. Code of Civil Procedure section 902 is derived, with immaterial variations, from section 938 of the 1872 Code of Civil Procedure. The annotations of the 1872 Code Commissioners give, as an example of a party who is not aggrieved and may not appeal, an executor who objects to an order determining the shares to be distributed to various beneficiaries of an estate. (Code Comrs. note foil. 18 West’s Ann. Code Civ. Proc. (1980 ed.) § 902, pp. 10-11.)
The nearly universal weight of authority from other states also takes this position. Other states in addition to California also limit appeals to aggrieved parties, and similarly conclude that fiduciaries are not aggrieved and may not appeal from orders determining the shares of various beneficiaries in the property being administered. (See, e.g., First Nat. Bank of Dewitt v. Yancey (1991) 36 Ark.App. 224, 225 [826 S.W.2d 287, 288] [“It is the general rule that a trustee, acting in its representative capacity, cannot by an appeal litigate the conflicting claims of beneficiaries.”]; Virden v. Hubbard (1906) 37 Colo. 37 [86 P. 113]; Dockray v. O’Leary (1934) 286 Mass. 589, 591-592 [190 N.E. 798, 798-799]; In re Fusz’ Estate (Mo. 1966) 397 S.W.2d 595 [16 A.L.R.3d 1271] [“ ‘The great weight of authority is to the effect that an executor or administrator as such is not aggrieved or prejudiced by a decree determining the rights of the beneficiaries, and hence may not appeal.’ ”]; Bryant v. Thompson (1891) 128 N.Y. 426, 435-436 [28 N.E. 522, 525]; In re Musser’s Estate (1941) 341 Pa. 1, 9-10 [17 A.2d 411, 414]; In re Reeves’ Estate (1934) 62 S.D. 618 [256 N.W. 113, 114]; In re Maher’s Estate (1938) 195 Wash. 126, 130 [79 P.2d 984, 986, 117 A.L.R. 91] [“The general rule is that an administrator, as such, cannot appeal from a decree of distribution determining the persons who should receive an estate, either as heirs at law of the decedent or as distributees under a will.”]; Annot. (1967) 16 A.L.R.3d 1274 [collecting cases]; Annot. (1949) 6 A.L.R.2d 147 [collecting cases]; [1091]Annot. (1938) 117 A.L.R. 99 [collecting cases]; 2A Scott & Fratcher, The Law of Trusts (4th ed. 1987) § 183, p. 560.)
The rule that a fiduciary is not aggrieved by an order determining the shares of various beneficiaries is the consequence of several aspects of a fiduciary’s role in administering property on behalf of multiple beneficiaries. First, the fiduciary has a duty of impartiality towards all the beneficiaries and may not favor one over another by litigating for or against a particular beneficiary’s claim. (§ 16003 [“If a trust has two or more beneficiaries, the trustee has a duty to deal impartially with them.”]; Estate of Ferrall, supra, 33 Cal.2d at p. 204 [“Since a trustee must deal impartially with beneficiaries [citation], he should not be allowed to participate in the adjudication of their individual claims.”]; Roach v. Coffey, supra, 73 Cal. at p. 282 [“We think that it is the settled law of this state that an administrator cannot represent either side of a contest between heirs, devisees, or legatees contesting for the distribution of an estate. He cannot litigate the claims of one set against the other.”]; First Nat. Bank of Dewitt v. Yancey, supra, 36 Ark.App. at p. 225 [826 S.W.2d at pp. 288-289] [“The underlying basis for the rule is the trustee’s duty to deal impartially with beneficiaries.”].)
Second, the fiduciary’s position is that of a stakeholder who holds property at the direction and under authority of the court and who is indifferent to the disposition decided on by the court. (Estate of Ferrall, supra, 33 Cal.2d at p. 204 [“[T]he trustee is therefore to be regarded as a mere stakeholder with no duties to perform other than to pay out funds to the various claimants as ordered by the proper court, and the beneficiaries must then protect their own rights.”]; In re Estate of Healy (1902) 137 Cal. 474, 477 [70 P. 455] [In a “controversy between different heirs as to their respective rights of inheritance, . . . it is well settled that the administrator has no interest, but is a mere officer of the court, holding the estate as a stakeholder, to be delivered to those whom the court shall decide to be entitled thereto.”]; Virden v. Hubbard, supra, 37 Colo, at p. 3 [86 P. at p. 113] [“ ‘As between those claimants, the decision may have been erroneous, but, if so, the error did not and could not affect the [executor]. He was merely a disinterested holder of the fund, the right to which was in dispute between others.’ ”]; Annot., supra, 16 A.L.R.3d at p. 1277 [“The underlying rationale for the general rule denying a right to appeal appears to be that the executor or administrator is a mere stakeholder with a duty to deliver the residue of the estate to those persons designated by the court, and not bound to litigate their conflicting claims at the expense of the estate when the conflicting parties may do so at their own expense if it is their desire.”].)
Finally, when the beneficiaries whose interests are affected by the order, and who therefore are aggrieved, have acquiesced in the court’s order [1092]affecting their shares by deciding not to appeal, the fiduciary has no basis for challenging an order to which they do not object. (Bates v. Ryberg, supra, 40 Cal. at pp. 465-466; Dockray v. O’Leary, supra, 286 Mass, at pp. 591-592 [190 N.E. at pp. 798-799]; In re Fusz' Estate, supra, 397 S.W.2d at p. 595 [“ ‘The rule appears to be based on the acquiescence of the beneficiaries.’ ”]; Bryant v. Thompson, supra, 128 N.Y. at pp. 433-434, 435 [28 N.E. at pp. 523-525]; In re Musser’s Estate, supra, 341 Pa. at p. 8 [17 A.2d at p. 414] [“An executor may not challenge distribution to legatees merely because he thinks the court erred in ordering it when, in fact, the distributees do not object. [Citations.] A stakeholder, ordered to pay out of funds held by him, is not aggrieved by a distribution which he considers objectionable but which is satisfactory to the distributees.”]; In re Reeves’ Estate, supra, 62 S.D. 618 [256 N.W. at p. 114].)
As a necessary corollary of this rule, this court has held that a fiduciary is not aggrieved by, and therefore cannot appeal from, an order determining whether an action by a beneficiary is a contest within the meaning of a no contest clause. (Estate of Murphy, supra, 145 Cal. at p. 467.) In Estate of Murphy, an executrix sought to appeal the question of whether two devisees under a will had contested the will and had therefore forfeited their devises under the will’s no contest clause. We held that the executrix could not appeal the issue of whether the devisees had violated the no contest clause. “This is a question in which, as executrix, the appellant has no interest, and which she cannot have decided on this appeal. It does not affect the executrix in her representative capacity. It concerns only the rights of the residuary devisees. In such cases the executrix ‘cannot litigate the claims of one set of legatees against the others at the expense of the estate’ (Bates v. Ryberg, 40 Cal. 465), nor maintain an appeal.” (Estate of Murphy, supra, 145 Cal. at p. 467; accord, Smith v. Esslinger, supra, 26 Cal.App.4th at pp. 584-585 [trustee is not aggrieved by and may not appeal from order under section 21320 determining that trust beneficiary’s proposed action was not a contest within the meaning of the trust’s no contest clause].)
In considering the same question, New York’s highest court likewise concluded that an executor may not appeal the question of whether a beneficiary has violated the no contest clause of a will. (Bryant v. Thompson, supra, 128 N.Y. at pp. 432-435 [28 N.E. at pp. 523-525]; accord, Krause v. Tullo (Mo.App. 1992) 835 S.W.2d 488, 490.) In Estate of Ferrall, this court cited Bryant v. Thompson as an example of an order “merely determining which beneficiaries are entitled to share in a particular fund.” (Estate of Ferrall, supra, 33 Cal.2d at p. 204.)
This court’s decision in Estate of Murphy, supra, 145 Cal. 464, dictates the result here. An order under section 21320 determines only whether a beneficiary’s proposed action amounts to “a contest within the terms of the no [1093]contest clause” of the written instrument in question. In Estate of Murphy, at page 467, this court held that fiduciaries could not appeal from such orders. Thus, the trustee in this case may not appeal from the section 21320 order.
This result is an inevitable consequence of the general rule that a fiduciary may not appeal from an order determining the shares of various beneficiaries. A section 21320 order determines only whether the beneficiary in question will remain a beneficiary if he or she takes the proposed action or instead will lose his or her share of the property administered under the written instrument. As such, a section 21320 order only determines the relative allocation of the property among the beneficiaries—the share that each beneficiary under the instrument will receive. A section 21320 order does not increase or decrease the amount of property administered under the instrument. It cannot either authorize or prohibit the beneficiary from taking the proposed action; it only determines what the consequence of the proposed action will be to the beneficiary’s interest in the property administered under the instrument.
Estate of Murphy recognized that such an order presents only the conflicting claims of beneficiaries. (Estate of Murphy, supra, 145 Cal. at p. 467.) Here, for example, the only effect of the trial court’s section 21320 order determining that Montello’s proposed action is not a contest under the terms of the no contest clause of the trust is that if Montello so acts, she will not forfeit her share under the trust and the other beneficiaries will not thereby have their shares increased. Like any other “orderQ merely determining which beneficiaries are entitled to share in a particular fund” (Estate of Ferrall, supra, 33 Cal.2d at p. 204), an order determining whether a beneficiary has forfeited his or her share under the no contest clause of a written instrument does not aggrieve the fiduciary administering the instrument and the fiduciary therefore cannot appeal it. (Estate of Murphy, supra, 145 Cal. at p. 467.)
To permit a fiduciary to appeal from an order under section 21320 would be to allow the fiduciary to represent the interests of one group of beneficiaries against those of another beneficiary, precisely what a fiduciary is not permitted to do. A fiduciary’s duty of impartiality among beneficiaries is fundamental. (§ 16003; Estate of Lynn (1952) 109 Cal.App.2d 468, 473 [240 P.2d 1001] [“The executor is the representative of all the legatees and devisees and its ‘duty was, and doubtless now is, to stand indifferent to all claimants, and not to favor one above the other, until the decision becomes final . . . .’” (Italics original.)]; Rest.2d Trusts, § 183.) If a trustee were permitted to appeal a section 21320 order, the trustee, by choosing sides and using the trust’s resources (which, as here, may be substantial) to work to [1094]increase the amount flowing to the other beneficiaries at the expense of the beneficiary making the application, would necessarily violate this fundamental duty.3
Because the conclusion this court reached in Estate of Murphy is sound and is dictated by our other rulings on when a fiduciary is aggrieved and may bring an appeal, I would, unlike the majority, continue to adhere to it and would apply it to this case. Accordingly, I would hold that the trustee here, in his capacity as trustee, is not aggrieved by the trial court’s determination under section 21320 that Montello’s proposed action will not be a contest within the terms of the trust’s no contest clause. The other beneficiaries of the Goulet trust whose shares would increase if Montello forfeited under the no contest clause were, of course, aggrieved parties who could have appealed the section 21320 order. None of them, however, chose to do so.4
III
The majority, however, overrules Estate of Murphy and thereby disrupts without justification our well-developed body of law delineating when a fiduciary is aggrieved by an order for purposes of appeal. The majority claims it is justified in doing so by the passage of time since Estate of Murphy was decided and because in its view the statutory scheme has changed. (Maj. opn., ante, at p. 1082, fn. 6.) Neither point is well taken.5
[1095]Contrary to the majority’s assertion, the passage of time ordinarily strengthens, rather than undermines, the precedential force of a decision. That is certainly the case here, where Estate of Murphy is but a specific application of a larger principle of the law of trusts and estates that has been consistently adhered to for over a century and that the majority does not question.
The majority also errs in concluding that the statutory scheme governing appeals by fiduciaries has changed. The requirement that the trustee must be aggrieved in order to appeal has not changed. (Code Civ. Proc., § 902.) And the requirement that the trustee act impartially towards all beneficiaries has not changed. (Prob. Code, § 16003; Estate of Ferrall, supra, 33 Cal.2d at p. 204; Roach v. Coffey, supra, 73 Cal. at p. 282.)
The majority points to two statutes, section 16000 and section 21322, that it contends form a new “statutory scheme” authorizing appeals by fiduciaries from section 21320 orders. (Maj. opn., ante, at pp. 1082, 1085 & fns. 6, 9.) Section 16000 sets forth the trustee’s duty to administer the trust in accordance with the trust instrument. The majority asserts that the trustee’s duty under section 16000 is a new duty that undermines Estate of Murphy's holding that fiduciaries may not appeal from orders determining whether a beneficiary’s action is a contest within the terms of a no contest clause. Not so. It has long been the rule that trustees are bound by the trust instrument. (Civ. Code, former § 2258, subd. (a), enacted in 1872 and repealed by Stats. 1986, ch. 820, § 7, p. 2730 [“A trustee must fulfill the purpose of the trust, as declared at its creation, and must follow all the directions of the trustor given at that time . . . .” (Italics added.)]; Bryson v. Bryson (1923) 62 Cal.App. 170, 175 [216 P. 391].) And,, as I explain further at a later point, a trustee’s duty to follow the trust instrument does not authorize a trustee to appeal from a court order determining the rights of beneficiaries in order to champion a contrary view of the trust instrument that would increase the share of some beneficiaries at the expense of other beneficiaries.6
Nor does section 21322 support the majority’s position. Section 21322, in conjunction with section 1220, sets forth the parties entitled to notice of a [1096]section 21320 proceeding. Where, as here, the trust settlor is deceased and the settlor’s estate is under administration at the time the section 21320 application is made, sections 21322 and 1220 provide for notice to the personal representative (a designation that includes the executor or administrator, see § 58, subd. (a)) of a decedent’s estate but do not provide for notice to the trustee of any trust established by the decedent. In this case, however, because the trust is a devisee under the will, under the law applicable at the time the trustee, like any other devisee, could have made an appearance in the estate administration proceedings or filed a “request for special notice,” either of which would have thereby entitled the trustee to notice of all proceedings in the estate administration, including the section 21320 proceeding. (See former § 1220, subds. (a)(2)(B) & (b) and present § 1250.)
The majority argues that the notice requirements of sections 21322 and 1220 evidence a legislative intent that “fiduciaries be involved in litigation of [section 21320] applications” through the appeal stage. (Maj. opn., ante, at p. 1085.) The majority’s assertion is contrary to this court’s previous holding that the mere fact that a fiduciary receives notice of a proceeding does not give the fiduciary standing to litigate the matter at issue. (Estate of Friedman (1917) 176 Cal. 226, 228 [168 P. 21] [although executor must be named and served in proceeding to determine beneficiaries of estate, executor has no right to litigate for or against any beneficiary; “his name is inserted as a party solely for the purpose of giving him information of the proceeding”]; see also Estate of Lynn, supra, 109 Cal.App.2d at p. 473 [executor’s right to notice of proceeding to determine interests of various beneficiaries in estate does not give executor standing to participate in or appeal such a determination; notice “is only for the purpose of keeping him informed”].)
More fundamentally, the majority is mistaken when it asserts: “The statutory scheme contains no limitation on the fiduciary’s participation at the appeal stage or at any other point. If the Legislature had meant for any such limitation to exist, it presumably could have said so.” (Maj. opn., ante, at p. 1085.) In Code of Civil Procedure section 902, the Legislature has in clear and unmistakable terms imposed limitations on a party’s right to appeal. Under section 902, a party must be aggrieved to appeal. The fact of providing notice to a party can neither determine nor alter whether a party possesses an interest in the proceeding that makes it aggrieved by the court’s order. For the reasons I have set forth above, the trustee has no interest in the competing claims of various beneficiaries to share in the trust and therefore cannot be aggrieved by the trial court’s ruling as to whether a beneficiary’s action is a contest; whether the trustee receives notice of the proceeding [1097]cannot change the requirement that the trustee remain disinterested or make the trustee an aggrieved party.
Finally, even if the majority were correct that a fiduciary who has been given notice of the pendency of a trial court proceeding is aggrieved for purposes of standing to appeal, the provision for notice is simply irrelevant here. The trustee never made an appearance in the trial court or filed a request for special notice and thus had no right to notice of the section 21320 proceeding. The trustee did not oppose Montello’s section 21320 application; only the special administrator of the estate opposed Montello’s section 21320 application.7 Because the trustee did not have a right to notice in this case and did not litigate in the trial court in opposition to Montello’s application, the argument that a fiduciary with the right to notice is aggrieved for purposes of appeal is beside the point.
There is little force to the majority’s remaining arguments. The majority attempts to analogize a trustee’s appeal from a section 21320 order to the exception recognized in In re Heydenfeldt (1897) 117 Cal. 551 [49 P. 713], and Estate of Kessler, supra, 32 Cal.2d at pages 369-371, that permits appeals by fiduciaries from orders requiring the fiduciary to make interim payments out of the property they administer before the rights of all creditors and beneficiaries to that property have been fully determined. This analogy fails. It is based on a failure to distinguish between the section 21320 proceeding, which merely determines the effect of the beneficiary’s proposed action on the interest that the beneficiary would otherwise possess under the terms of the instrument, and the substance of the underlying action proposed by the beneficiary (here, Montello’s claim against Goulet’s estate).
The orders that this court held to be appealable in In re Heydenfeldt and Estate of Kessler were orders that required the fiduciary to make interim payment out of property being administered by the fiduciary before a final accounting and final distribution of the property occurred. The order appealed in In re Heydenfeldt, supra, 117 Cal. at page 552, was an order [1098]directing the executors of an estate to make an interim payment to redeem certain land from a foreclosure sale; the order appealed from in Estate of Kessler, supra, 32 Cal.2d at page 368, was an order directing the executors of an estate to make an interim payment of attorney fees to the guardian ad litem of a beneficiary. Estate of Kessler also lists orders of partial distribution and orders for family allowances as other examples of interim payment orders that a fiduciary may appeal. (Estate of Kessler, supra, 32 Cal.2d at p. 368.) These orders, by requiring interim payments to particular claimants before the rights of all claimants have been determined, all present the potential for causing inequitable treatment to other claimants who are paid later. For example, an order directing interim payment in full of one creditor’s claim would unfairly prefer that creditor if there were insufficient assets to pay all creditors in full; and a partial distribution order would unfairly prefer one beneficiary if there were insufficient funds to pay all devises in full.
By contrast, a section 21320 order is not an order that compels any payment, interim or final, by the trustee or any other fiduciary. The section 21320 order does not determine the merits of the beneficiary’s proposed action, such as Montello’s proposed creditor’s claim; it only determines what effect the proposed action would have on the beneficiary’s interest. Because a section 21320 order presents none of the dangers of the interim payment orders at issue in In re Heydenfeldt, supra, 117 Cal. at page 552, and Estate of Kessler, supra, 32 Cal.2d at page 368, the exception of those cases does not apply.
Nor does the particular nature of the beneficiary’s proposed action in this case—a creditor’s claim against an estate of which the trust is a devisee— cause the trustee to be aggrieved by the section 21320 determination. The section 21320 order does not create the creditor’s claim against the estate, does not determine the merits of the claim, and is not a precondition to the beneficiary’s bringing the claim against the estate. Here, for example, Montello possessed her creditor’s claim against Goulet’s estate before she brought the section 21320 proceeding and she could have filed her claim against the estate whether or not she brought the section 21320 proceeding. Nor does the section 21320 order modify the terms of the trust in any way. The section 21320 order only determines whether the beneficiary will share in the trust or will instead be barred from doing so by the no contest clause. Moreover, even if Montello brings her claim against the estate and prevails on it, she will have no right to insist on an interim payment of her claim. (Prob. Code, § 11422.)
The majority also asserts, without supporting authority, that the trustee has a duty at the trial court level to litigate adversarily a section 21320 application by a beneficiary, and that therefore it would be anomalous for the [1099]trustee to litigate this issue at the trial court level and yet not be aggrieved for purposes of appeal. (Maj. opn., ante, at p. 1082.) In Estate of Murphy, supra, 145 Cal. at page 467, however, this court held, to the contrary, that the fiduciary there could neither “ ‘litigate’ ” in the trial court nor “maintain an appeal” on the issue of whether the beneficiary’s action was a contest within the meaning of no contest clause. (See also Estate of Hite (1909) 155 Cal. 436, 456 [101 P. 443] [It is “the established doctrine in this state that an executor or administrator as such has no part to play in contests between heirs, devisees, or legatees disputing regarding the distribution of the estate.”].) A trustee’s strict fiduciary duty of impartiality forecloses any other result. (See Estate of Murphy, supra, 145 Cal. at p. 467.) Moreover, as I have previously noted, the trustee in this case did not litigate Montello’s section 21320 application in the trial court and did not have a right to notice of Montello’s application.
In any event, even if a trustee could properly litigate in the trial court the question of whether a beneficiary’s proposed action amounts to a contest, it still would not follow that the trustee could be aggrieved by the court’s answer. One hundred years ago, New York’s highest court explained in Bryant v. Thompson, supra, 128 N.Y. at pages 432-435 [28 N.E. at pages 523-525], a case this court has previously relied upon for guidance in this area of the law (see Estate of Ferrall, supra, 33 Cal.2d at p. 204), why even in cases where a fiduciary has the right to request instruction from a trial court as to whether a beneficiary’s action is a contest within the meaning of a no contest clause, the fiduciary is not aggrieved by and may not appeal the court’s resulting order. At issue in Bryant was whether, under the no contest clause of a will, the decedent’s daughter had contested the will and thereby forfeited her devise in favor of the decedent’s widow. In the court’s words:
“There were two parties who had a pecuniary interest in the decision of the question involved in the case,—the daughter, who is satisfied with the result, as it is in her favor, and the widow, who does not appeal. The judgment rendered in the court to which the [executors] resorted in the first instance is a perfect protection to them in the disposition of the fund in accordance therewith, and in the performance of every duty growing out of the legacy to the daughter under the provisions of the will. This being true, what interest have the [executors] in the further prosecution of the action? They had an interest, and it was their duty, to procure a judicial determination of the questions presented by the facts alleged, but no interest or duty in obtaining a decision according to some view of the law that they may have themselves entertained, or have been advised by counsel. . . .
“The [executors] are not seeking any benefit for themselves in the action. They have simply asked the judgment and advice of the court in regard to [1100]the disposition of property belonging to others, which is in their care and keeping. The court has given the judgment and advice prayed for, and the real beneficiaries do not complain. . . . [T]he right [of appeal] is limited to a party aggrieved. In this case the executors and trustees under a will, having asked the court for directions in regard to their duty, and for a judgment as to which of two parties is entitled to a certain bequest, which directions and judgment are given and acquiesced in by both of the alleged claimants of the fund, the [executors] are not aggrieved, within the meaning of the statute, by the judgment rendered.” (Bryant v. Thompson, supra, 128 N.Y. at pp. 433-435 [28 N.E. at pp. 524-525].)
Other courts too have recognized that the fact that a fiduciary may seek guidance from the court as to the rights of various beneficiaries under a written instrument does not give the fiduciary standing to bring an appeal after the court has provided the requested guidance. (Dockray v. O’Leary, supra, 286 Mass, at pp. 591-592 [190 N.E. at pp. 798-799] [“The executor having, in his official capacity, brought all interested parties before the probate court fulfilled his whole duty and had no further interest in the outcome of the suit except to abide by and carry out the instructions of the court in the distribution of the estate. [Citations.] ... As executor he properly sought the instructions of the court. . . . [A]ll other parties in interest, since they filed no appeal, must be taken to be satisfied with the instructions given . . . .”]; In re Reeves’ Estate, supra, 62 S.D. 618 [256 N.W. at p. 114] [“The trustee has no interest in the matter save to perform his duty, whatever it may be adjudicated to be. . . . All parties joined in asking the circuit court to direct the trustee whether to pay the money in question to the widow or to the son. The court gave the requested direction, and if the mother and son are satisfied the trustee will have to be, and he has no right to seek to litigate the matter further at the expense of the trust estate.”]; In re Maher’s Estate, supra, 195 Wash, at p. 132 [79 P.2d at p. 987] [“While it is [an administrator’s] duty to assist the court before which the probate proceeding is pending, in ascertaining the persons who, in fact and in law, are justly entitled to receive the estate, when the court, after a proper hearing, has determined the matter and designated the persons who are entitled to receive the estate, as to that phase of the proceeding the interest of the administrator ceases.”].) Thus, even if the majority were correct that a trustee could litigate against a beneficiary in a section 21320 proceeding in the trial court, that would not authorize the trustee to appeal from such a determination.
The majority also asserts that allowing trustees to appeal from section 21320 determinations concerning trust no contest clauses, despite creating an additional burden on our appellate courts, will minimize litigation overall [1101]because, the majority assumes, such proceedings will involve creditor claims against estates of which the trust is a devisee “that, if pursued, would likely wind up being litigated.” (Maj. opn., ante, at p. 1085.) This statement is completely without factual support in its assumption that a claim made by a beneficiary of a trust against an estate of which the trust is a devisee will generally be spurious and therefore will be rejected and litigated. The majority also offers no support for its assumption that proposed creditor claims by trust beneficiaries against estates of which the trusts are devisees form the bulk of section 21320 proceedings concerning trusts such that permitting appeals of section 21320 orders by trustees generally will be more than offset by a reduction in litigation between estates and creditors who are trust beneficiaries.
Finally, the Legislature has directed, both with respect to trusts generally and with respect to section 21320 proceedings specifically, that the common law governs except as it has been modified by statute. (Prob. Code, §§ 15002, 21301.) No statute has modified the common law on the question of whether a fiduciary is aggrieved by and may appeal from an order determining whether a beneficiary’s action is a contest within the meaning of a no contest clause. Estate of Murphy, supra, 145 Cal. 464, is the common law of California on that question; its answer is that a fiduciary is not aggrieved by and may not appeal a determination as to whether a beneficiary’s action is a contest, and the Legislature has directed us to adhere to that answer.
The Court of Appeal correctly applied the rule of Estate of Murphy, supra, 145 Cal. 464, and dismissed the trustee’s appeal because the trustee was not aggrieved by the trial court’s order under section 21320 determining that Montello’s creditor’s claim against Goulet’s estate was not a contest. Accordingly, I would affirm the judgment of the Court of Appeal.
Mosk, J., concurred.
All undesignated statutory references hereafter are to the Probate Code unless otherwise noted.
Section 21300 defines the term “no contest clause” as follows: “ ‘No contest’ clause means a provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary if the beneficiary brings a contest.” (§ 21300, subd. (b).) In turn, “ ‘Contest’ means an attack in a proceeding on an instrument or on a provision in an instrument.” (§ 21300, subd. (a).)
The majority seems to assume that trustees would necessarily appeal only from trial court orders granting section 21320 applications. Nothing in the majority’s holding, however, would preclude the trustee from appealing from a ruling denying a section 21320 application, either alone or in concert with the beneficiary who made the application, or tells the trustee how to choose which side in the dispute to take and on which to spend the trust’s resources.
Because in this case the trust is a devisee under the will, the trust is presumably aggrieved to the same extent as any other devisee under the will by the trial court’s determination that Montello’s proposed action (her claim against the estate) is not a contest of the will within the meaning of the will’s no contest clause. The trustee, as representative of the trust, could therefore appeal that order to the same extent that any other devisee could; there would seem little point in doing so, however, because the will’s no contest clause only revokes the contestant’s interest in the estate, and Montello, while a beneficiary of the trust, is not a devisee of the will and has no interest in the estate (see Prob. Code, § 34, subd. (b) [beneficiary of trust that receives devise under a will is not a devisee of the will]).
The majority also dwells on the fact that Estate of Murphy was decided by three justices sitting in department. At the time, this court decided cases both in bank (with all seven justices participating) and in departments of three justices. If the majority means to suggest that Estate of Murphy should be accorded lesser precedential value because it was decided in department, the majority is wrong. As this court said in Niles v. Edwards (1892) 95 Cal. 41, 42 [30 P. 134], “[u]nder the constitution of this state, there is but one supreme court, and the jurisdiction which is vested in it may be exercised either in Bank or in Department; and in either case its exercise is of equal import.”
The majority, in a related argument, asserts that a trustee must be permitted to appeal even when no beneficiary objects to the trial court’s section 21320 order. As I have discussed in the text above, however, this court and others have observed that when the beneficiaries have acquiesced, a fiduciary has no legitimate interest in appealing from a court order fixing the relative shares of the beneficiaries. (See, e.g., Bates v. Ryberg, supra, 40 Cal. at pp. 465-466 [“if [the beneficiaries] are satisfied with the distribution [the fiduciary] cannot complain because some have received less than they are entitled to”].) A trustee who seeks to appeal when the beneficiaries choose not to, in addition to breaching the duty of impartiality by favoring some beneficiaries over others, becomes nothing more than an officious intermeddler stirring up a matter that all of the interested parties were content to let lie.
Nor is it significant in this regard that the same person, Ferry, was both trustee of the Goulet trust and special administrator of Goulet’s estate. This court has been quite careful to consistently observe the “basic distinctions” between a trustee of a trust and a personal representative of an estate. (Estate of Beach (1975) 15 Cal.3d 623, 637 [125 Cal.Rptr. 570, 542 P.2d 994].) Even when, as here, the same person was named both trustee and executor, this court has emphasized that that person’s “powers and duties as executor were just as distinct from [his] powers and duties as trustee as if the will had named [someone else] as trustee.” (Id. at pp. 637-638; accord, Goad v. Montgomery (1898) 119 Cal. 552, 561 [51 P. 681] [“The fact that the two offices are held successively by the same individuals does not give to them in the exercise of one office the power that had been conferred for the exercise of the other. Their rights and duties as executors were quite distinct from the duties imposed upon them as trustees . . . .”].)