Opinion
S.F. No. 5849.
April 7, 1911.
APPLICATION for a Writ of Prohibition directed to the Superior Court of Alameda County. F.B. Ogden, Judge.
This was an application for a writ of prohibition brought by the petitioner, as administratrix of the estate of Therese Berthol, deceased, to restrain the superior court of Alameda County from making an order directing the payment of attorney's fees incurred by the persons named as executors in an alleged will of said deceased, in an unsuccessful contest by them to establish the probate of such will. The further facts are stated in the opinion of the court.
R.B. Tappan, for Petitioner.
The application for a writ of prohibition is denied. In explanation, we take this occasion to say if the superior court should make an order directing the payment of attorney's fees incurred by the proponent of the will of Therese Berthol, payable out of the assets of the estate, it would be an order directing the payment of a claim against said estate, and, under subdivision 3 of section 963 or under section 1616 of the Code of Civil Procedure, it would be an appealable order. The applicant has, therefore, an adequate remedy by appeal, and prohibition is unnecessary.