Mathewson

John W. Mitchell died testate November 26, 1893. By his last will he bequeathed to Grace Mathewson, Minnie Henderson, and Charles Henderson (the assignor of Ellen Wetherbee and B. Schwartz & Co.) legacies of $5,000 each, amounting in the aggregate to $15,000. The will was admitted to probate December 16, 1893, and letters testamentary issued to Henry F. Geer and George S. Blóss, the executors named therein. They duly qualified and gave notice to creditors. The decree establishing such notice was made November 21, 1895. An inventory and appraisement was filed November 21, 1895, showing the estate to be of the value of $1,364,307.55. The time for presenting claims had expired, and secured claims amounting to say $160,000, and unsecured claims amounting to $18,000, had been allowed. The respondents filed their petition for a partial distribution under section 1663 of the Code of Civil Procedure, on the seventh day of April, 1896, containing allegations which, if true, entitled them to distribution.

The executors (appellants) filed their opposition to the petition May 16, 1896, averring in substance that there is not sufficient funds on hand or readily attainable to pay the legacies,…

I concur in the judgment of reversal. Upon the question of the sufficiency of the notice to confer jurisdiction to make the order in question I express no opinion.

Temple, J., concurred in the judgment.

Hearing in Bank denied.