In re Jessup

The Court.

This appeal is from an order settling the annual account of Isaac Jessup and S. O. Putnam, executors of the last will and testament of Gershom P. Jessup, deceased. The alleged error consists of the dis-allowance by the court of certain items of account for moneys expended by the executors in the employ *626 ment of counsel to resist the claim of Richard P. Jessup to the estate as the pretermitted heir of the deceased. As to the value of the legal services of the attorneys, no question arises. But the contention of the respondents is, that the contest was between the legatees named in the will and the pretermitted heir, and that in such a contest the executors cannot represent either side. In Roach v. Coffey, 73 Cal. 281 , the court said: “We think that it is the settled law of this state that an administrator cannot represent either side of a contest between heirs, devisees, or legatees contesting for the distribution of an estate. He cannot litigate the claims of one set against the other. His duty is to preserve the estate and distribute it as the court shall direct. (Estate of Wright, 49 Cal. 550 ; Bates v. Ryberg, 40 Cal. 465 ; Estate of Marrey, 65 Cal. 287 .) It is true that in none of these cases was the question of the allowance of attorney’s fees directly involved; but the right of executors or ad-, ministrators to litigate adverse claims of heirs, legatees, or devisees necessarily involved the right to employ counsel for that purpose. The right to employ counsel depends upon the right to litigate.

Order affirmed.