Majority
p. 208[No. 6,691. Department Two.] ESTATE OF W. H. MARTIN, Deceased.
Headnote
Order, of Probate Court—Appealable Order.—An order of the Probate Court directing an executor to prpceed with the sale of real estate, previously ordered to be sold, is not appealable.Appeal from an order of the Probate Court-- of the County of San Joaquin.
The facts are stated in the opinion.
B. McKinne, and S. L. Terry, for Appellant.
J. M. Hogan, for Respondent.
It appears from the record, that, on the 2nd day of February, 1878, the Probate Court made an order authorizing and directing the executor to sell certain real property of the estate for the purpose of paying its indebtedness; that the executor neglected to make the sale; and that subsequently, on the motion of certain parties holding allowed claims against the estate, and after notice, the Probate Court, on the 12th of April, 1879, made an order requiring the executor to sell the property in accordance with the original order of sale. From the order of April 12th the present appeal is taken.
p. 209
Section 1,544 of the Code of Civil Procedure, after making certain provisions regarding the order of sale, provides that “ if the executor or administrator neglects or refuses to made a sale under the order, and as directed therein, he may be compelled to • sell, by order of the Court, made on motion, after due notice, by any party interested.” From orders of the latter character no appeal lies. (§ 963, Code Civ. Proc.)
Appeal dismissed.
McKinstry, J., and McKee, J., concurred.