IN RE: WEBSTER'S ESTATE. (1941)

Appellants herein petition for a rehearing upon the grounds formerly urged and for the additional claimed reason that if the finding that they were not entitled to take under the clause of the will devising them the residue of the estate becomes final under the order as affirmed by this court, they would no longer have an interest entitling them to maintain the contest. In so far as James L. Crane is concerned, who is named executor in the 1934 will, there has been no proper determination that he is not entitled to serve as such executor.

Section 370 of the Probate Code provides that “Any person interested may contest the will *.” After a will has been admitted to probate and the executor has taken up the administration it becomes the executor's right and duty to protect the interests of the beneficiaries and he has, as such, a right to oppose a contest until final decision. Estate of Collins, 174 Cal. 663, 164 P. 1110; Estate of Hey denfeldt, 117 Cal. 551, 49 P. 713; Estate of Dillon, 149 Cal. 683, 87 P. 379; Estate of Langley, 140 Cal. 126, 73 P. 824; In re McKinney's Estate, 112 Cal. 447, 44 P. 743. The duty of an executor named, before probate, to establish the will and oppose a contest may be questioned. There is no doubt that such a named executor is given such right. Estate of Higgins, 158 Cal. 355, 111 P. 8; Estate of Hite, 155 Cal. 448, 455, 101 P. 448; 11B Cal.Jur., p. 221, sec. 819.

Respondents contend in their petition for a rehearing that due to the failure of appellants to submit a special interrogatory concerning the revoking clause and the clause appointing the executor, they waived a finding thereon by the jury. This contention was decided adversely to respondents in Estate of Hewitt, 63 Cal.App. 440, 218 P. 778.

Petitions for rehearing denied.

PER CURIAM.