In the opinion heretofore rendered the court in department held that the appellant, Woodhams, was *Page 671 sufficiently interested in upholding the will of the deceased to maintain an appeal from the order in controversy, but inadvertently assumed that it was an order revoking the probate of the will, the fact being that it was an order refusing to admit the will to probate, and it was made upon a contest of the will before probate. The record on appeal was in typewriting as provided in section 953a of the Code of Civil Procedure, and neither party for the information of the court printed in their briefs the order appealed from, or any part of the pleadings in the case. (Code Civ. Proc., sec. 953c.)
The difference in the facts does not require a different ruling. Woodhams was named in the will as executor thereof and as such he filed a petition for the probate thereof, to which the respondent filed the contest. The code (Code Civ. Proc., sec. 1299), provides that any executor named in any will may petition the court to have the will proved. This clearly authorizes the executor to file and prosecute the petition to a final determination. An appeal may be taken from an order refusing to admit a will to probate. Having the authority and the right to file and prosecute the petition, he stands, with respect thereto, in a fiduciary relation to all the beneficiaries thereunder and it is his duty, and accordingly his right, to take all the proceedings necessary to secure a just determination of its validity, including an appeal from an adverse decision on the question. He has authority also, under section 369 of the Code of Civil Procedure, to sue without joining with him the persons for whose benefit the action is prosecuted. In this case he is interested because his position as the executor named in the will, and as the petitioner for its admission to probate, makes him the trustee for that purpose of the legatees named in the will. In that capacity, and by virtue of that right, he is a "party aggrieved" by the decision, and one who may appeal therefrom as provided in section 938 of the Code of Civil Procedure. There are no decisions by this court on the exact point, but the principle is everywhere recognized. (40 Cyc. 1229; 16 Ency. of Pl. Pr. 997; 18 Cyc. 206; 3 Cor. Jur. 622.)
Petition for rehearing denied. *Page 672