Estate of Mitchell

SHENK, J.

The executors of the will of James McL. Mitchell, deceased, appeal from an order directing them to pay to the respondent a real estate commission on the sale of real property consummated and confirmed by the court in the course of the administration of the estate of the decedent.

The respondent, a duly licensed real estate agent, was employed under a contract in writing to sell a ranch belonging to the estate. The authorization was contained in a letter written by one of the executors in response to a letter of the respondent requesting authority to list the property. The executor wrote: “We refer you to your letter of December 1, 1938, in which you inquired of the James McL. Mitchell ranch near Morgan Hill. We would be pleased to list this property with you for sale. For your information the inheritance appraisal on this property is $34,000.00. Any sale would be subject to court approval, and all offers should be accompanied by a check for not less than 10 per cent of the offered

[50]

price. Before taking any client to the property it will be necessary to make an appointment with Mrs. Mitchell, who is now residing on the premises.”

The respondent showed the property to Mrs. Doudell and her son. Mrs. Doudell eventually purchased the property from the executors. In confirming the sale the probate court found that the authority of the respondent to show the property was legally sufficient, that the respondent was the procuring cause of the sale, and was entitled to a commission of five per cent of the purchase price of $30,600.00.

The contention is made by the respondent that the order directing the executors to pay the commission is not an appealable order. The 1935 amendment to section 1240 of the Probate Code provides that an order instructing or directing an executor or administrator is appealable.

(Howaldt

v.

Superior Court,

18 Cal. (2d) 114 [114 P. (2d) 333];

Estate of Keet,

15 Cal. (2d) 328 [100 P. (2d) 1045].) The order appealed from should be deemed such an order.