Appeal from the Probate Court of the City and County of San Francisco.

In August, 1870, M. C. Bateman was appointed executor of the last will and testament of J. H. Mullins, deceased, there being several legatees named in the will. In December of the same year Patrick Mullins, one of the legatees, filed a petition for the removal of the executor, on the grounds stated in the opinion. In obedience to an order of the Court, the executor appeared to show cause why his letters testamentary should not be revoked, and a trial ensued, at which a large amount of testimony was given, notes of which were taken by the short-hand reporter, and subsequently transcribed for the use of counsel and the Court. During the progress of the investigation, the Court ordered the short-hand reporter’s bills for transcribing the testimony, amounting to $768, to be paid by the executor out of funds in his possession belonging to the estate. They were so paid, and the amounts were included by the-executor in his final accounting.

The executor was removed on the ground of mismanagement, and Peter Craig was appointed administrator, with the will annexed, of the estate. Upon the settlement of the final account of the removed executor, the questions of embezzlement and fraud were again raised by the contestants, and the executor demanded that the issues be tried by a jury. Accordingly a jury was summoned, and, special issues having been submitted, a verdict was returned acquitting the executor of all the charges of fraud and embezr zlement, and deducting §707.50 from his accounts, as sums improperly allowed. Upon the réndition of the verdict, the Court made an order that the executor pay the jury fees, amounting to $138, out of the funds of the estate. He paid them, as directed, and the amounts were allowed him in his final accounting, on the ground that they were paid by tho orders of the Court. The administrator and certain of the legatees appealed from so much of the judgment, in the settlement of the final account, as allowed the charges for reporter’s and jurors’ fees.