Counsel must be content with a summary of conclusions of the court, as I have no leisure to extend the reasoning, although I have well considered the case and the arguments.

1. The duty of the executor:

It was not only the duty of the executor to seek to recover assets of the estate, but had he forborne such endeavor, he would have been liable as for malfeasance or nonfeasance: Code Civ. Proc., title 11 (of part 3), c. 8, Powers and Duties of Executors, etc.; secs. 1581 et seq.; c. 10, Accounts, etc.; art. 1, secs. 1616 et seq.

The discussion as to the bona tides of the suit against the Dudleys seems to be concluded by the opinion or “decision” of Judge Hunt in Wright v. Dudley, which says: “While the proceedings in this case were hastily commenced, yet I am not prepared, from all the evidence in the case, to say that they were instituted in bad faith”j also, the “decision” *99 says that “the questions of law presented on the trial were difficult, and in some respects serious, and their solution by no means an easy matter.” A ease presenting issues of a “serious” and “difficult” character, and occupying many days in trial, in which a nonsuit was refused, must have afforded some grounds to the judgment of the executor for its institution and prosecution. If the prosecution were without merit, it would seem inequitable to cast the defense in any costs; but Judge Hunt decided, for the reasons suggested, to wit, the difficulty and seriousness of the questions, to apportion the costs of that action.

The questions here argued with great elaboration by counsel for contestants seem to me disposed of by the department presided over by Judge Hunt, in which the suit of Wright v. Dudley was determined.

As to the haste with which the suit was brought: It was the duty of the executor to proceed with diligence, as delay might have incurred the loss of property by enabling the grantee to part with it to a purchaser who could not be pursued.

The court considers that the action of Wright v. Dudley was begun and carried on by the plaintiff executor as a duty, and that the expenses incurred and obligations assumed were contracted in good faith. An executor acting in good faith is entitled to the aid of counsel in all litigation concerning the estate: Code Civ. Proc., sec. 1616. I

It being the duty of a representative to defend the estate against claims, or to prosecute suits upon claims, which he believes should be defended or prosecuted, in the exercise of his honest judgment, he should be reimbursed, even though the suit be lost: Be Miller, 4 Bedf. 304.

Mr. McCutchen having appeared in the litigation at the instance of the executor, and having rendered service, is entitled to be considered in this connection: Estate of Simmons, 43 Cal. 543 .

The second objection and exception is overruled and denied.

*100 2. “The Exhibit and Account” of May 3, 1884:

The paper indorsed “Exhibit and Account of Executors,” filed May 3, 1884, does not operate an estoppel upon the executor, nor does the “Order Settling Exhibit and Account,” filed May 16, 1884, give a dignity to that paper to which it is not inherently entitled. The items thereof may now be impeached. If counsel deem it necessary, let the order settling it be set aside.

3. “The Exhibit and Account of Executor,” filed August 19, 1884:

I understood from his remarks upon the hearing that the presentation of this paper by the executor was “experimental,” merely to raise the points as to whether he had any claims to include in an account. Let him now, therefore, under the instruction of this opinion as to his powers, duties and rights, prepare and file an account of his administration from the beginning, and, when such account is presented and filed, a day will be set for the hearing, or the account sent to a referee, as to the respective counsel may seem expedient.

The prayer of the “Petition and Report accompanying Exhibit and Account” should be formally denied, with leave to the executor to file a first and final account, as indicated in the foregoing opinion.

OPINION ON SECOND APPLICATION.

The argument of the counsel, Mr. Titus, in regard to the compensation of the attorney for the minor heir in the trial of Wright v. Dudley, has convinced this court that it is not competent to consider such claim under section 1718, Code of Civil Procedure, and that the attorney’s remuneration must be restricted to probate proceedings. As attorney for minor heirs, there is no authority in the court to allow him for services rendered in the action of Wright v. Dudley; and for the services he did render, he must look to the executor. However harsh this may seem, I am satisfied, upon reargument and reflection, that it is the law.