In the Matter of the Estate of ALEXANDRE LETELLIER, Deceased, 74 Cal. 311

Hayne, C. This is an appeal from a decree of partial distribution, made upon the petition of the executor. The provision of the Code of Civil Procedure is as follows: — “ Sec. 1658. At any time after the lapse of four months from the issuing of letters testamentary or of administration, any heir, devisee, or legatee may present his petition to the court for the legacy or share of the estate to which he is entitled, to be given to him upon his giving bonds, with security, for the payment of his proportion of the debts of the estate.” And the next

section provides that “notice of the application must be given to the executor or administrator ■personally, and to all persons interested,” etc. These sections are the only ones authorizing partial distribution to be made. It seems to us that they do not contemplate a petition by the executor, to whom it is of no concern whether an heir, devisee, or legatee, gets paid in advance, or not. There being no authority in the statute for the proceedings taken in the court below, it was unauthorized, and should be set aside.

We think this point arises upon the record whether the decree of partial distribution is to be considered as a judgment or as an order. We therefore advise that the decree appealed from be reversed, and the cause remanded. Belcher, C. C., and Foote, C., concurred. The Court.— For the reasons given in the foregoing opinion, the decree appealed from is reversed and cause remanded.