In re Estate of Marrey

         OPINION

          [3 P. 897] McKINSTRY, Judge

         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.