In re the Estate of Heydenfeldt

Temple, J. This appeal is by the executors from an order of the probate court requiring them to redeem certain land from a foreclosure sale.

The testator, some time prior to his death, had executed deeds which he delivered to Charles Ashton, to be delivered to the parties named upon his death. In his will he recognized and confirmed these deeds as a provision made for certain of his children who were the grantees named in the deeds. He also provided that his debts should be paid out of his unproductive property.

Before he made and delivered the above deeds to Ashton, and before the making of the will, he had mortgaged portions of the property described in some of the deeds to secure an indebtedness of his own, amounting to about forty thousand dollars. Upon a former appeal (Estate of Heydenfeldt, 106 Cal. 434), we held that it was the intent of the testator to exonerate the mortgaged property to the extent of his unproductive property, or, at least, that these mortgage debts were part of the indebtedness which he directed his executors to pay from that property.

The respondent moves to dismiss the appeal on the ground that the executors are not parties aggrieved. The motion is based upon a line of decision's beginning with Bates v. Ryberg, 40 Cal. 463. It was there said: “ The heirs and devisees or legatees interested in an estate are made parties to the proceedings for a distribution; any one of them feeling aggrieved may appeal from the final order. The executor, however, does not represent any of these parties, 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.”

I think there has been a disposition to carry the doctrine of that case beyond its legitimate scope, and further than it should be carried on principle. An [553]administrator, or an executor, is a trustee of an express trust. He is authorized to sue or to be sued without joining with him the beneficiaries of the trust, but the suits which may thus be brought are suits affecting the trust, and not those in which he is individually interested. Among his beneficiaries are creditors. He not only may, but it is his duty to, defend the estate from all unjust and illegal attacks made upon it which affect the interests of heirs, devisees, legatees, or creditors. He cannot be kept out of such litigation upon the claim that he is not personally injured. In fact, if that were the nature of his grievance, he ought not to litigate at the expense of the estate. When, however, he has administered the estate, and under the statute has called all parties interested into court by a proper notice and petition, his only remaining duty is to deliver the estate over to those designated by the court.