
    [No. 8,590.
    In Bank.
    —May 28, 1884.]
    
      IN THE MATTER OF THE ESTATE OF PHILIP G. MARREY, Deceased, RODERIGO WILKINSON, Appellant
    Appeal—Executob.—An executor cannot litigate the claim of one legatee as against another at the expense of the estate.
    Appeal from a decree of the Superior Court of the city and county of San Francisco, for the settlement of the final account of an executor, and distribution of the estate.
    The appellant Wilkinson was executor of the estate of Marrey, and was also a legatee under the will. He filed a petition for a settlement of his final account, and for distribution of the estate and discharge. Other legatees opposed the petition upon the ground that the amount claimed by the appellant as his proportion under the will was excessive. The Superior Court reduced the amount claimed by appellant. The appeal was taken by him as “executor of the last will and testament of Marrey, deceased.” The respondents moved to dismiss the appeal.
    
      Henry E. Highton, for Appellant.
    
      Frank J. French, and John M, Burnett, for Respondent.
   McKinstry, J.

The appeal of the executor from the decree of settlement and distribution must be dismissed. He cannot in any case litigate the claim of one legatee as against the others at the expense of the estate. (Bates v. Ryberg, 40 Cal. 463.)

A fortiori when he himself is the legatee whose claim he is attempting to maintain, at the expense of the estate, in his capacity of executor.

Appeal dismissed.

Morrison, C. J., Ross, J., Sharpstein, J., and Myrick, J., concurred.

Thornton, J., dissented.  