Linton v. Walker

TRAYNOR, J. Dorothy W. Kessler died on April 16,1946, leaving a will in which she named her father' and mother, Fred and Lnln Walker, executors and trustees of her estate. The sole beneficiary of the will and testamentary trust was Karen Dee Kessler, the infant daughter of the testatrix. The admission of the will to probate was contested by the husband of the testatrix. Respondent, an attorney at law, was appointed guardian ad litem of the infant and participated in the settlement of the contest. The will was admitted to probate, and Mr. and Mrs. Walker were appointed executors of the estate. Respondent petitioned the probate court for attorney’s fees to be paid out of the estate for his services for the benefit of the infant in the settlement of the will contest and the court entered an order directing the executors to pay him $3,500. The executors appeal from this order.

Respondent contends that the appeal should be dismissed on the grounds that the order directing the payment of fees is not an appealable order, and that the appellants are not “aggrieved” parties entitled to maintain an appeal under section 938 of the Code of Civil Procedure, which provides: [369]“Any party aggrieved may appeal in the cases prescribed in this title. ’ ’

Section 1240 of the Probate Code provides; “An appeal may be taken to the supreme court from an order . . . instructing or directing an executor or administrator; directing or allowing the payment of a debt, claim, legacy or attorney’s fee. ...” The order directing the allowance of attorney’s fees to respondent is clearly an appealable order within the meaning of this section. (See Estate of Mitchell, 20 Cal.2d 48, 50 [123 P.2d 503]; Howaldt v. Superior Court, 18 Cal.2d 114, 116 [114 P.2d 333].)

The remaining question is whether the executors are entitled as “aggrieved” parties to maintain the appeal. It is generally recognized that executors and administrators acting in their representative capacities are indifferent persons as between the real parties in interest and consequently cannot litigate the conflicting claims of heirs or legatees at the expense of the estate. (Bates v. Ryberg, 40 Cal. 463, 465; Roach v. Coffey, 73 Cal. 281, 282 [14 P. 840]; Estate of Ross, 179 Cal. 358, 360 [182 P. 303]; McCabe v. Healy, 138 Cal. 81, 90 [70 P. 1008].) Thus, an 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. (Bates v. Ryberg, supra; Estate of Marrey, 65 Cal. 287 [3 P. 896]; Estate of Williams, 122 Cal. 76, 77 [54 P. 386]; Estate of Ayers, 175 Cal. 187, 188 [165 P. 528]; Estate of Babb, 200 Cal. 252, 255 [252 P. 1039]; Estate of Murphey, 7 Cal.2d 712, 716 [62 P.2d 374]; see eases collected in 117 A.L.R. 99, 100.) After the decree the administration has served its purpose, and the claims of the creditors have been protected. The beneficiaries must then protect their own rights, and it is not the duty of the executor or administrator to litigate the claims of one against another.