dissenting. I dissent. The cases cited in the opinion of Justice Henshaw undoubtedly show that this court has more than once decided that an order made after final judgment in a probate proceeding is not appealable, and the present decision is therefore supported by abundant precedent.
I think, however, that the decisions referred to are one and all based upon an erroneous construction of section 963 of the Code *257of Civil Procedure, and that it is not too late do correct tlie error; for no vested right would be impaired by holding now that the statute does give an appeal in a case in which, the right has heretofore been denied.
The first subdivision of said section allows an appeal from a final judgment, whether entered in an action or special proceeding commenced in the superior court. A final decree of distribution of a decedent’s estate is certainly a final judgment in a special proceeding commenced in a superior court, and comes within the express words of this clause.
By subdivision 2 of said section an appeal is allowed from any special order made after final judgment. Why limit this to an order made after final judgment in an action—excluding judgments in special proceedings?
The only reason suggested is, that since subdivision 3 specifies numerous interlocutory orders in probate eases from which an appeal will lie, and also specifies the decree of distribution with the rest, it was intended to cover the whole subject of appeals in probate cases. There is some slight force in this argument, it is true, and the rule of construction upon which it is based cannot be denied, but it is also true that this rule of construction is not especially persuasive, and in this case ought to give way to the far more important rule, that remedial laws should be largely and beneficially construed to advance the remedy.
There is certainly as much necessity for an appeal from an order made after final decree of distribution for the purpose of carrying it into effect as there would be from any order made to enforce a decree of specific performance, or a judgment for the recovery of land—or any other judgment in a suit in equity or action at law. This being so, I think a liberal construction in favor of the remedy should be given to this statute rather than a narrow and technical one which takes away the remedy.