"It is also well settled that an executor has no duty to participate actively in any proceeding to determine succession of the estate. (Citing Estate of Julius Friedman, 176 Cal. 226 [ 168 P. 21].) "The questions involved in this matter are:
( Estate of Healy, 137 Cal. 474, 477 [ 70 P. 455]). [3] "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" ( Estate of Kessler, 32 Cal.2d 367, 369 [ 196 P.2d 559], citing numerous cases.) [4] The executor is the representative of all the legatees and devisees and its "duty was, and doubtless now is, to stand indifferent to all claimants, and not to favor one above the other, until the decision becomes final" (11B Cal.Jur., p. 672, citing Roach v. Coffey, 73 Cal. 281 [14 P. 840] and Estate of Friedman, 176 Cal. 226 [ 168 P. 21]). [5] It is true section 1080 requires notice to be given to an executor, but that apparently is only for the purpose of keeping him informed (11B Cal.Jur., p. 672).
The majority's assertion is contrary to this court's previous holding that the mere fact that a fiduciary receives notice of a proceeding does not give the fiduciary standing to litigate the matter at issue. ( Estate of Friedman (1917) 176 Cal. 226, 228 [ 168 P. 21] [although executor must be named and served in proceeding to determine beneficiaries of estate, executor has no right to litigate for or against any beneficiary; "his name is inserted as a party solely for the purpose of giving him information of the proceeding"]; see also Estate of Lynn, supra, 109 Cal.App.2d at p. 473 [executor's right to notice of proceeding to determine interests of various beneficiaries in estate does not give executor standing to participate in or appeal such a determination; notice "is only for the purpose of keeping him informed"].) More fundamentally, the majority is mistaken when it asserts: "The statutory scheme contains no limitation on the fiduciary's participation at the appeal stage or at any other point.
And we are in accord with the conclusion. In Estate of Friedman, 176 Cal. 226 [ 168 P. 21], the entire residue of the estate was given to the Hebrew Home for Aged Disabled. Various persons appeared claiming to be heirs and, among other things, asserted that the home could take only one-third of the estate.
If that portion of the decree in favor of the deceased legatee was absolutely void because the legatee was dead at the time of the proceedings for distribution it could not be corrected after the notice here given, under section 473 of the Code of Civil Procedure, as is well illustrated in the case at bar. Here the executor, who has no interest in the manner in which the estate is distributed and no right to participate in controversies between the heirs as to distribution ( Estate of Parsons, 65 Cal. 240 [ 3 P. 817]; Estate of Jessup, 80 Cal. 625 [ 22 P. 260]; Estate of Healy, 137 Cal. 474, 477 [ 70 P. 455]; McCabe v. Healy, 138 Cal. 81, 89 [ 70 P. 1008]; Estate of Hite, 155 Cal. 448, 456 [ 101 P. 448]; Estate of Friedman, 176 Cal. 226, 228 [ 168 P. 21]; Id., 178 Cal. 27 [ 172 P. 140]), applied to the court, not for distribution of this portion of the estate and upon proper petition and notice, but for correction of the order of distribution based upon its own mistake in assuming that the legatee was living when application was made by it for the original decree of distribution. The record does not show upon whom notice of the application to amend the decree was served nor is a copy of the notice contained in the record, and aside from the recitals in the order amending the decree there is no evidence that any notice whatever was given.
It is settled law in this state that the administrator or executor has no right to take a part in litigation between various parties asserting conflicting rights as heirs, and that he has no authority to engage attorneys for either claimant, or to bind the estate in any manner on that behalf. ( Roach v. Coffey, 73 Cal. 281, [14 P. 840]; Estate of Friedman, 176 Cal. 226, [ 168 P. 21].) On like grounds, such administrator or executor is not a party aggrieved by a decree determining the proportions in which various claimants shall share in the residue available for distribution, and cannot appeal therefrom.
The appellants complain that the executors actively participated in the trial, offered evidence, and objected to testimony offered by others. They were parties to the proceeding (Code Civ. Proc., sec. 1664), and while we have held ( Estate of Friedman, 176 Cal. 226, [ 168 P. 21]) that they had no duties to perform as executors for or against any of the claimants in the proceeding, it does not follow that their participation was so far erroneous or prejudicial as to authorize the reversal of the judgment. That question would depend upon the evidence produced by them and objected to by them. From an examination of the case we are satisfied that the Kagan claimants were in no wise prejudiced by such conduct of the executors.
(1) Appellant's contention that he was denied a fair trial because the executor's attorneys participated in it is devoid of merit. It is urged that an executor, being a representative of all of the legatees, should maintain a neutral position between persons claiming to be entitled to the distribution of an estate ( Estate of Friedman, 176 Cal. 226, 228-229 [ 168 P. 21]; Estate of Lynn, 109 Cal.App.2d 468, 473-474 [ 240 P.2d 1001]) and that in the instant case the position of neutrality was violated. Appellant complains that the attorney for the executor filed a trial memorandum, interposed objections to questions propounded by appellant's trial counsel, and joined the Benners in the motion for judgment pursuant to section 631.8 of the Code of Civil Procedure.
But in a proceeding to establish a right under section 41 of the Probate Code, the executor has no interest and should not participate actively. ( Estate of Friedman, 176 Cal. 226, 228-229 [ 168 P. 21].) The active participation of the executor's attorney could reasonably be inferred by the trial court to have colored the negotiations as being the business of settling the will contest and its incidents only.
The evidence is amply sufficient to support the award of $300 to Lambros for said extraordinary services, provided, however, the trial court had power and authority to make said award. The executrix contends that, under the doctrine set forth in Estate of Friedman, 176 Cal. 226 [ 168 P. 21] and Estate of Murphey, 7 Cal.2d 712 [ 62 P.2d 374], the trial court had no power to allow compensation out of the estate for services rendered in said matters, even though she as executrix employed respondent to render legal services in connection therewith. These cases hold that, in proceedings to determine heirship and the respective rights of heirs or persons entitled to distribution to succeed to the estate under former section 1664, Code of Civil Procedure (now Prob. Code, ยง 1080), it is not part of an executor's duty to participate in such proceedings; and that the court, therefore, has no power to allow compensation out of the estate for services rendered in such proceedings by the executor's attorney, even though the executor authorized the attorney to perform such services.