I dissent.
The majority opinion reaches a shocking result. It holds that heirs who were solely responsible for bringing a fund into the decedent’s estate receive nothing as a result of their *137efforts. This inequitable result is reached even though there would have been no property in the estate to distribute to the named residuary legatees had the heirs failed to take the action the costs of which are now charged to them alone. This result is not compelled by the law and is contrary to elementary rules of fairness and justice.
The probate court specifically found: “ [Tjhat without said legal services there would be no property, real or personal, in the estate of decedent; that said services created and preserved for the estate of decedent all of the real and personal property that has come into the possession of said Special Administrator. . . .
“That said extraordinary legal services were performed in connection with litigation taken for the common benefit of each of the heirs, legatees and beneficiaries of the estate of decedent.” (Emphasis added.)
These findings cannot be challenged. The majority concedes that it was the first will contest by the heirs which made possible the appointment of the special administrator, that the heirs instigated the appointment of said administrator, and that the successful litigation was undertaken as a result of information unearthed and supplied by the heirs. Yet the majority finds that the heirs were not responsible for the recovery of the property because they caused a special administrator to be appointed instead of personally prosecuting the action which returned to the estate property originally conveyed inter vivos by the testator (see Anglo Calif. Nat. Bank v. Philpot, 148 Cal.App.2d 469 [306 P.2d 970]). This is a completely unrealistic distinction.
The rules announced in Estate of Reade, 31 Cal.2d 669 [191 P.2d 745], and Estate of Lundell, 107 Cal.App.2d 463 [237 P.2d 62], are clearly applicable. These eases simply announce a rule of fairness and justice: 1 ‘ [One] who has succeeded in protecting, preserving or increasing a fund for the benefit of himself and others may be awarded compensation from the fund for the services of his attorney. This is to compel those for whose benefit the action or proceeding was taken to bear their share of the expenses of the litigation; and this rule is equitable and just. .. . The application of equitable principles would seem to require that the other heirs bear their proportionate share of the expense of the litigation.” (Emphasis added; 31 Cal.2d at pp. 671-672.)
It is true that Estate of Beade, supra, is distinguishable on its facts from the instant case, because in the Beade ease there *138was no will involved, the decedent having died intestate. But there was a will involved in Estate of Lundell, supra, where the equitable principle enunciated in Estate of Beade was applied by the court without any discussion of section 750 or the order of allocation of expenses which would have been required had the section been applied. The theory of these cases-—that the costs incurred in producing a fund which will inure to the benefit of many should be shared by all rather than shouldered by only one member of that group—is clearly applicable here. The heirs have produced a fund which will benefit the named legatees—without which, in fact, these named legatees would have taken nothing—and yet only the heirs are to be burdened with the costs of producing this fund. The result is that they will take nothing while the legatees will receive a windfall of over a hundred thousand dollars. The application of the equitable principles above discussed would seem to be clear.
Section 750 of the Probate Code sets forth the order in which costs are to be allocated if no particular fund has been designated by the testator. But the purpose of this section, as indicated by the majority, is “that the law endeavors to carry out the intent of the testator as far as possible. ...” (Ante, p. 129.) This order of allocation should not be followed when it will not carry out the testator’s intent. The majority finds justification for the literal application of section 750 in the evidence that the testator had no intent to benefit his heirs. If it be assumed that the testator would have preferred that his heirs take nothing had he known the size of the estate which would be distributed,1 it cannot be said that the testator would have preferred that his heirs take nothing if, as a result, his named legatees would also have taken nothing. The only reasonable assumption is that the testator would have preferred *139that his legatees take two-thirds of the now sizable residue even though his heirs would also benefit. In this particular case the legatees take the entire estate and the heirs are effectively disinherited. In future cases those who would take only from an intestate portion of an estate will be loath to put forth any effort to bring property into an estate if there is any likelihood that the costs will approximate the intestate share.
In this very case, where the majority finds that the presumed intent of the testator has been effectuated, it is evident that had the heirs known that they would take nothing from their efforts they would have done nothing. Thus the original will contest would not have taken place, the special administrator would never have been appointed and Philpot and Kirtlan, who were found to have acquired Stauffer’s property, inter vivos and under the will, through undue influence (Estate of Stauffer, 142 Cal.App.2d 35 [297 P.2d 1029] ; Anglo Calif. Nat. Bank v. Philpot, supra) would have retained the property so acquired to the exclusion of the named legatees. If, as the majority finds, Stauffer intended these legatees to take under his will this intent would have been totally frustrated if the heirs had failed to act. Had this decision been announced prior to Stauffer’s death this would have been the result in this case. It will undoubtedly be the result in future cases.
The majority opinion sets forth three reasons that would permit surcharging of a common fund with the costs of recovering that fund: “fairness to the successful litigant, who might otherwise receive no benefit because his recovery might be consumed by the expenses; correlative prevention of an unfair advantage to the others who are entitled to share in the fund and who should bear their share of the burden of its recovery; encouragement of the attorney for the successful litigant, who will be more willing to undertake and diligently prosecute proper litigation for the protection or recovery of the fund if he is assured that he will be promptly and directly compensated should his efforts be successful.” (Ante, p. 132.) (Emphasis added.) The majority then concludes that these reasons are not important to this case because the attor*140neys ’ fees will, in any event, be paid. But the equally important principles of “fairness to the successful litigant” and “prevention of an unfair advantage to the others who are entitled to share in the fund” are disregarded. The result of complete nonparticipation in the fund by those responsible for creating it indicates the importance and fairness of these principles and their applicability to the present case.
It cannot be said, reasonably, that in this case the testator would have preferred that the residuary legatees take to the exclusion of his heirs. At the date of Stauffer’s death the residuary legatees were not entitled to anything, there being no property in the residuary fund. Furthermore, a specific devise to Snyder, who was also a residuary legatee, was adeemed by sale prior to the testator’s death. These facts suggest that at the date of his death the testator’s desire to benefit these legatees was not particularly strong and that both the legatees and the heirs had been excluded by him, requiring that both groups be treated equally once a fund was made available.
The probate court properly apportioned the costs against the heirs and the residuary legatees. This method complied with the equitable principles laid down by the Beade decision and allocated the cost among all who benefited from the recovery of the property. The order of the probate court should, in my opinion, be affirmed.
Bespondents’ petition for a rehearing was denied December 30, 1959. Peters, J., was of the opinion that the petition should be granted.
It is not certain that the testator intended to exclude completely his heirs from participating in his estate. His will specifically bequeathed an annuity of fifty dollars a month to his sister, Myra S. Henry (one of the contesting heirs), if there was “sufficient revenue from the estate to warrant it.” The first appellate court opinion (Estate of Stauffer, 142 Cal.App.2d 35 [297 P.2d 1029]) did not discuss this provision of the will, and the legacy was not probated. The failure of the appellate court to provide for participation by Myra can be attributed to the fact that the terms of the bequest were uncertain and the court assumed that Myra, as an heir, would share in the one-third of the residue which would pass by intestacy and so would inherit an amount at least equal to that which was bequeathed for her probable life expectancy.
The appellate court reversed the probate court’s refusal to admit any of the will to probate since “substantially all” (142 Cal.App.2d at 42 of Stauffer’s estate would have gone to his heirs, a result obviously contrary to his intentions. But it should not be concluded that the court *139intended that Myra should be totally excluded. The will itself repudiates such a conclusion. However uncertain “sufficient revenue ... to warrant it” may be it would seem that an estate totalling one hundred seventy thousand dollars is “sufficient.’’ The present decision thus negates an intent expressed on the face of the will since Myra is now excluded along with the other heirs.