dissenting.
I would dismiss the appeal for failure on the part of a proper party to file a timely notice of appeal. A calendar of the pertinent filings is as follows:
8/24/82 — Order holding codicil improperly executed.
9/1/82 — Notice of Appeal by appellants-Dibbles from August 24, 1982 Order. 11/30/82 — Mandate dismissing appeal as not being from final order.
2/25/83 — Final Decree of Distribution and Determination of Heirship.
3/10/83 — Notice of Appeal by appellant-Watson from final decree.
3/23/83 — Notice of Appeal by appellants-Dibbles from final decree.
There can be no question but that the Notice of Appeal filed March 23, 1983 is beyond the fifteen day limit set in Rule 2.01, W.R.A.P.:
“An appeal * * * shall be taken by filing a notice of appeal * * * within fifteen (15) days from entry of the judgment or final order appealed from * *
The majority opinion would breathe life into the Notice of Appeal filed September 1, 1982 by application of the paragraph in Rule 2.01 which provides:
“A notice of appeal, in a civil or criminal case, filed prematurely shall be treated as filed on the same day as entry of judgment or final order, provided it complies with Rule 2.02, W.R.A.P.”
The paragraph is not applicable to the September 1, 1982 Notice of Appeal inasmuch as such notice does not comply with Rule 2.02, W.R.A.P. Rule 2.02 provides:
“The notice of appeal shall specify the judgment or final order or part thereof appealed from; and shall name the court to which the appeal is taken.” (Emphasis added.)
We have already determined that the order specified in such notice was not final. It does not specify the Decree of Distribution and Determination of Heirship. In other words, it fails to comply with Rule 2.02, W.R.A.P., and, thus, cannot be considered as filed pursuant to the quoted paragraph from Rule 2.01, W.R.A.P.
The March 10,1983 Notice of Appeal was timely filed. However, it was filed by the executor of the estate, and the question is whether or not he is a proper party to file the appeal. The general rule is that:
“ * * * such appeal is allowed usually only to a person aggrieved by the order, such as an heir, legatee, or devisee, and an administrator or executor is held not such a person entitled to appeal from the decree of distribution * * Annotation: Right of executor or administrator to appeal from order granting or denying distribution, 16 A.L.R.3d 1274, 1277 (1967).
The annotation then notes several exceptions to the rule and recites:
“ * * * To generalize such exceptions, it may be fairly said that the executor or administrator may appeal from an order of distribution where such order affects the decedent’s estate as a whole, apart from the conflicting interests of particular beneficiaries, or where a compliance with the order might subject the executor or administrator to personal liability. * * * ” Id. at 1277.
The rule is there said to be “based on the fact that ordinarily an order of distribution is concerned with the conflicting claims of particular beneficiaries.” Id. at 1277.
Bancroft’s Probate Practice 2d, § 88, p. 204, words the proposition:
“It is generally recognized that executors and administrators acting in their repre*651sentative 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. * * * ”
The majority opinion approaches this situation as one which “is tantamount to a judgment invalidating a portion of the decedent’s will” and which judgment “had the effect of frustrating the intention of the decedent.” Of course, the resolution of any conflict between devisees or heirs of a will can result in a judgment “invalidating” part of it, and the intention of a testator can be expressed only in a properly executed will. To say that the decedent’s intention was here frustrated is to say that the safeguards relative to attestation of a will frustrate his intentions. Such may happen, but it does so with the object of protection against fraud. If the witnesses do not meet the legislative requirements, how can the majority opinion conclude that the testator actually signed the codicil? The discussion of the merits of the appeal by the majority of the court supports the answer to this rhetorical question. In any event, the battle should be between the parties to be affected by it. The issue was not one which affected the entire estate as a whole apart from conflicting interests of beneficiaries, and it did not subject the executor to personal liability. The executor should remain neutral and not take part in an appeal or contest of the order of the probate court.
It is interesting to note that the attorney for the estate in this ease acknowledges that appellant-Watson has no standing to file the appeal and is not aggrieved or prejudiced by the decree of distribution. He urges dismissal of the appeal. He was not even served with appeal documents.
The jugglery in this case dictates a dismissal of the appeal without any attention being given to the merits thereof.