In re Lux

De Haven, J. The superior court made an order settling certain accounts rendered by the executors of the estate of Charles Lux, deceased, to which accounts exceptions had theretofore been filed by certain devisees named in the will of the deceased. This appeal is taken by said devisees, and is from so much of the order as fails to charge the executors interest upon money which the court found was improperly paid by them to the widow as a family allowance, and in so far as it fails to require a full accounting of the partnership affairs of the firm of Miller & Lux, of which firm the deceased was a member at the time of his death.

The transcript on appeal as amended contains the accounts of the executors and reports accompanying them, the objections or exceptions to the accounts, the findings of the court thereon, and the judgment or order settling the accounts. There is no bill of exceptions in the record, but the papers just referred to are certified by the clerk of the court from which the appeal is taken, to be copies of the originals on file in the matter of the estate of Charles Lux, deceased.

The respondents have made a preliminary motion to dismiss the appeal upon the ground that the papers contained in the transcript are not authenticated by a bill of exceptions as required by rule 32 of this court.

Section 951 of the Code of Civil Procedure makes it the duty of a person appealing from an order to furnish this court with a copy of the order appealed from, and copies “of papers used on the hearing in the court below,” and rule 32 of this court provides that such papers or evidence must be authenticated by a bill of exceptions, when no other mode of authentication is provided by law. This rule was only intended to apply to those appeals in which the order is sought to be re[613]versed, because of matters alleged to be shown by affidavits or evidence used or taken upon the hearing of the court below. Such was the case of White v. White, 88 Cal. 429, cited by respondents. But a fair interpretation of its language, as well as a consideration of its object, will show that this rule of the court can have no application when the order appealed from is attacked for matters appearing upon its face, or upon the face of the record of which it forms a part. The settlement of the accounts of an executor or administrator, though sometimes spoken of as an order, is in effect a judgment; and it was held in the Estate of Page, 57 Cal. 238, that in a proceeding for the settlement of such an account “the petition and account, and the written objections filed to it are the pleadings which the clerk of the court is required to attach to a copy of the judgment (Code Civ. Proc., sec. 670), and these constitute the judgment-roll ”; and to the same effect is the earlier and well-considered case of Estate of Isaacs, 30 Cal. 106; and while in such a proceeding it is not incumbent upon the court to make and file express findings, still, when the account is assailed in any particular for matters not appearing upon its face, the court may properly make express findings upon such issues, as was done in the Estate of Moore, 96 Cal. 522, and when it does so such findings become as much a part of the judgment-roll as the judgment or order itself, or the account and exceptions thereto which constitute the pleadings of the parties. If the findings in this case are to be regarded as a part of the judgment-roll, as we think they must, then every objection urged by the appellants to the order appears upon the face of the judgment-roll, and in such a case a bill of exceptions has no office to perform, its only purpose being to make that matter of record which would not otherwise appear as such.