2,647.

#### GEORGE BATES, *exr.,*Appellant, *v.*JOSEPHINE RYBERG *et*al., Respondents.

Estates of Deceased Pebsons, Bight of Appeal. — The heirs and devisees or legatees of an estate, are made parties to the proceedings for a distribution, and any one of them feeling aggrieved may appeal from the final order.

Idem. — Exeodtoe.—The executor of an estate cannot maintain an appeal from a final order of distribution, upon the grounds that the property was improperly divided between the legatees.

Appeal from the Probate Court of the City and County of San Francisco.

The facts are sufficiently stated in the opinion.

*Hoyt*and *Sears,*for Appellant.

*Van Dyke*and *Lowey,*for Respondents.

If any of the legatees believe themselves entitled t5 more than the decree gives them, they alone are the *“parties aggrieved," against*whom the order of distribution of this es*464tate bas been entered, and they alone are tbe parties- entitled to appeal under See. 335 of tbe Civil Practice Act.

Tbe executor, as sucb, can bave no individual preference (wbicb would entitle bim to an appeal,) as to tbe *manner*in wbicb tbe Court distributes tbe balance in tbe bands of tbe executor. Until delivery of tbe estate to tbe distributees, be is still tbe trustee of tbe *whole*estate, and cannot take sides with one set of legatees in hostility to another set.

Tbe legal title to tbe personal estate vests without distribution in tbe distributee, in tbe same way and manner that tbe real estate descends to tbe heir. *Hall*v. *Hull,*27 Miss. 458; *Anderson*v. *Brumfield,*32 Miss. 107; *Beckett, etal.Y. Selover,*7 Cal. 215.)

*Hoyt-and Leon,*for Appellant, *in-reply.*

Tbe appeal of tbe executor should not be dismissed, because tbe Probate Act gives tbe executor tbe right of appeal in all cases. (Sec. 298.)

Upon a correct construction of tbe will, there remains to tbe estate of wbicb tbe executor is a special trustee tbe sum of more than five hundred dollars ($500).

Tbe executor may petition for tbe distribution. (Pro. Act, Sec. 258 and 260.)

Why not be permitted to see that tbe distribution is correct, and to obtain a correct one, by all tbe ordinary avenues open for that purpose ?

In *Pyaii*v. *Brockman*(6 Cal. 418), Brockman was not aggrieved personally ; yet-tbe case illustrates both tbe convenience and necessity of an appeal, as well as tbe interest of tbe trustee of sucb a trust to support one.

While tbe Practice Act (Sec. 335), gives only tbe party aggrieved a right to appeal, tbe Probate Act specially gives tbe executor sucb a right, and tbe interest be bas as representative of tbe deceased will support an appeal.

It is bis duty to see that tbe intention of tbe testator, as expressed, are correctly carried out. He is trustee for tbe legatees. (Story Eq. -Jur. Sec. 593.)

*465All parties to tbe record may appeal.

Tbat tbe “ whole interest in the *estate vests*in tbe legatees, etc., subject to tbe legal title wbicb vests in tbe executor for tbe purposes of collecting assets, paying debts, and for distribution, ” we admit. But one of tbe purposes for wbicb tbe title vests in tbe executor is for distribution —not a good, bad or indifferent distribution, but a legal one.

Temple, J.

delivered tbe opinion of tbe Court, Bhodes, Ob. J., CrooKett, J., and Wallace, J., concurring:

Upon tbe application of tbe executor, tbe Probate Court caused tbe proper notice tobe given to all parties interested, and on tbe return day of tbe notice proceeded to distribute tbe estate of tbe deceased among tbe legatees named in tbe will.

Tbe amount distributed is precisely tbat wbicb, upon final settlement, was found in tbe bands of tbe executor, and wbicb, in bis petition, be asked to bave distributed. There is no complaint tbat be is required to pay over more tban be bas, or tbat tbe entire estate bas not been distributed. All claims against tbe estate are paid, and tbe executor does not seem to bave any interest whatever in opposing tbe decree of distribution.

Upon tbe distribution it was found, however, tbat tbe property belonging to tbe estate was insufficient to pay all tbe legacies in full, and tbe executor appeals on tbe ground tbat it was improperly divided between tbe legatees. Tbe only matter complained of is tbat some of tbe legatees are paid more tban they ought to bave received, while others received less tban they were entitled to by tbe terms of tbe will.

Tbe heirs and devisees or legatees interested in an estate are made parties to tbe proceedings for a distribution ; any one of them feeling aggrieved may appeal from tbe final order. Tbe executor, however, does not represent any of these parties, as against tbe others, and if they are satisfied with tbe distribution be cannot complain because some bave *466received 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.

The appeal must be dismissed.

So ordered.