IN RE: KESSLER'S ESTATE. (1948)

Appellants Fred Walker and Lulu Walker are Co-executors and testamentary trustees under the last will and testament of Dorothy Walker Kessler, decedent. The sole beneficiary under the will of decedent and of the testamentary trust created by such will is Karen Dee Kessler, the minor child of decedent.

On July 14, 1947, the probate court upon application of respondent allowed and ordered payment of fees from the estate of decedent for services rendered to Karen Dee Kessler, a minor, by this respondent as her guardian ad litem. An appeal has been taken from this order by the executors.

Respondent now moves to dismiss the appeal for the reason that:

Appellants are not aggrieved parties and are therefore not entitled to appeal.

This proposition is tenable and is governed by these general rules:

1. Executors, administrators and trustees are in their official capacity indifferent persons as between the real parties in interest. They therefore have no concern as to who shall bear the costs of litigation and are not aggrieved parties, within the meaning of section 938 of the Code of Civil Procedure, entitled to maintain an appeal from an order of the probate court directing payment of funds from an estate.¹ (Goldtree v. Thompson, (1890) 83 Cal. 420, 422, 23 P. 383.)²

2. In order to maintain an appeal an appellant must be aggrieved by the order from which the appeal is taken. If not an aggrieved party he has no reason for taking an appeal and his appeal will be dismissed. (Rodgers v. Transamerica Corporation, 6 Cal.App.2d 340, 341 et seq., 44 P.2d 635; Nichols v. Nichols, 135 Cal.App. 488, 491, 27 P.2d 414.

Applying the foregoing rules to the facts of the instant case, since it appears that appellants were merely co-executors and testamentary trustees under the will of decedent, and that neither of them is a legatee or devisee under the will or a beneficary of the trust established thereby, they are not under rule 1, supra, aggrieved parties entitled to maintain an appeal. Therefore, under rule 2, supra, the appeal must be dismissed.

In re Estate of Rawitzer, 175 Cal. 585, 166 P. 581, relied on by appellants, is here inapplicable for in the cited case the appellant was a direct devisee of certain real property of the estate of Rawitzer, by which bequest the appellant was empowered to take immediate possession of the property, and title vested on the death of the testator. Therefore it was held that appellant had a vested interest in the property which entitled him to oppose a petition for the sale thereof and was entitled to appeal from an adverse decision of the probate court. Such a situation does not obtain in the instant case. Here the estate consists only of personalty, title to which did not vest at the time of the death of decedent.

The appeal is dismissed.

FOOTNOTES

1.  To this general rule there are certain well recognized exceptions which are not applicable to the present appeal:First: In cases involving the construction of the proper exercise of the duties of a fiduciary officer, his interest is such as to permit appeal from an order of the trial court defining his powers and duties. (District Bond Co. v. Cannon, 20 Cal.App.2d 659, 664, 67 P.2d 1090.)Second: An executor may appeal from an order (a) directing the payment of a family allowance from an estate, or (b) where an order presents a question as to the right or power of a trustee to comply with it when obedience to such order may result in personal liability attaching to the fiduciary officer. (In re Estate of Snowball, 156 Cal. 235, 237, 104 P. 446; In re Welch's Estate, 106 Cal. 427, 429, 39 P. 805.)

2.  The mere fact that the rule as announced in Goldtree v. Thompson, supra, has been accepted by the legal profession and not questioned for over half a century is cogent evidence of the soundness of the rule.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.