Estate of Keane

McKee, J.: John Keane, as surviving husband of Isabella Keane, deceased, applied by petition to the Probate Court of Marin County for revocation of letters of administration which had been granted by the Court to Helen Rutherford, the surviving mother of the deceased, and to grant letters of administration upon the estate to him. The application was made upon the grounds, that he was entitled to administer upon the. estate; that the mother had been appointed without his knowledge or consent ; that she was seventy years old, and mentally incompetent; that she had never filed or rendered an account or exhibit of the estate; and that she is incapable of executing the duties of her trust as administratrix, “ by reason of improvidence and want of understanding.” The truth of these averments was denied by the administratrix.

Upon the hearing, the Court found, among other things, that, before the grant of letters of administration to the mother, the husband had refused to administer upon the estate; that the estate consisted of personal property, of which the administratrix had returned and filed a correct inventory; that she had also published notice to creditors, and had otherwise duly and justly performed all the duties of her trust as such administratrix ; and that she is a proper and competent person to administer upon said estate.

Upon this finding, the Court made the following order: “In the matter of the petition of John Keane for letters of administration of i-said estate : It is hereby ordered, that the said petition and application be denied.” A motion was then made to vacate this “ judgment and order,” and grant a new trial, which was denied ; and from the judgment, and order of refusal to revoke, and the order overruling the motion for a new trial, comes this appeal.

An order refusing to revoke letters of administration is not appealable. (§ 969, Code Civ. Proc.; Estate of Montgom[409]ery, 55 Cal. 210.) An order, however, overruling a motion for a new trial is appealable. (§ 969, supra.) But such an order must itself be unappealable when made upon a motion to review or vacate a final order or judgment which is unappealable; for in law, it is not permitted.to do indirectly what is forbidden to be done directly. It could not, therefore, have been the intention of the Legislature to grant an appeal from an order overruling a motion for a new trial in a case or proceeding where it prohibited an appeal from the final order or judgment sought to be reviewed.