MARY S. DOUGHERTY et al., Appellants, v. COLUMBUS BARTLETT et al., Respondents, 100 Cal. 496

De Haven, J. The demurrer to the complaint was' properly sustained.

"Until distribution of the estate of William Walkerly, deceased, by the probate court, the respondents, Bartlett, Bacon, and Barker, hold the property of said deceased as executors of his will, and they must account to the probate court for all property of the estate of said deceased received by them as such executors, and for their management of the same prior to its distribution under the will of deceased, and it is for that court to determine what, if any, commissions the said named respondents shall be entitled to receive for their services as executors of said will, and also to determine in the settlement of the accounts of the said executors what moneys expended by them in the discharge of their duties were properly expended, and so chargeable to the estate represented by them, and whether they have exercised ordinary care in the management of the property of said estate, or whether they have mismanaged the same or permitted waste thereof.

It was a question solely for the consideration of the probate court, whether an attorney should be appointed to represent absent or minor heirs, and, if so appointed, the amount of compensation to be allowed him.

The probate court also had jurisdiction to make the order setting apart a homestead for the widow of the deceased Walkerly, and to make the order for a family allowance, and no facts are alleged in the complaint showing that such orders were fraudulently procured by the defendants, or either of them, as the result of any misrepresentation or concealment of facts; nor does it appear from the allegations pf the complaint that the court committed any error in making such orders, even if we could review the same in this action. The fact, if it be one, that the defendant, Blanche M.

Walkerly, openly asserts that she will commence legal proceedings against the other defendants as trustees under the will, to compel them to pay her out of the trust estate the further sum of twenty-one thousand dollars, does not give to plaintiffs any cause of action against her or the other defendants. It is unnecessary to attempt any synopsis of the voluminous complaint filed in this action, or to notice more particularly its several allegations.

We do not understand from the complaint that the executors, who are also the trustees under the will of the deceased, have failed “to annually distribute the residue of the rents and profits of the trust estate” among the nephews and nieces of the deceased, as directed by the will, or that this is an action to enforce this particular duty of the defendants, who are named as executors and trustees under the will, and we express no opinion upon the question whether such an action could be maintained in a court of equity prior to the distribution of the estate under the will. Judgment affirmed.

Fitzgerald, J., McFarland, J., Garoutte, J., Paterson, J., and Harrison, J., concurred.