ing the properties and of her right to elect at the time she made the statement.

The court found that during the executorship of John A. Smith he received two hundred and sixty-four dollars and sixty-five cents, moneys of the estate, and disbursed the sum of seventeen dollars and fifty cents, leaving in his hands at the time of his death two hundred and fortyseven dollars and fifteen cents belonging to the estate of deceased which was never paid over.

When John A. died his estate went into probate. His brother William continued as executor of the father's estate, but presented no claim against the estate of the brother. When William in turn died the time for presenting claims against the estate of John A. had expired. The court distributed to the estate of John A. the threetenths of the residue of the personal property devised to him and did not deduct the two hundred and fortyseven dollars and fifteen cents from his distributive share. John A. held the estate's money as trustee, and upon his death, being indebted to his beneficiary, the estate, its position became no better than that of any other creditor unless it was able to pursue the precise trust fund. (Lathrop v. Bampton, 31 Cal. 23; 89 Am. Dec. 141; Roach v. Caraffa, 85 Cal. 436.) It was the duty of William, as surviving executor, to have presented a claim against his brother's estate or to have compelled an accounting of his brother's trust in equity. (In re Allgier, 65 Cal. 230; Chaquette v. Ortet, 60 Cal. 594.) The court had no power to deduct the amount from the share of the estate of John A. upon distribution. Assets cannot be collected upon distribution (In re Cook, 77 Cal. 232, 233, 11 Am. St. Rep. 267), and the two hundred and forty-seven dollars and fifteen cents was not an advance to the devisee, so as to bring this case within the principle of Estate of Moore, 96 Cal. 522.

The order settling the administrator's account is affirmed and the decree of distribution is reversed.

TEMPLE, J., GAROUTTE, J., HARRISON, J., and VAN FLEET, J., concurred.

[Sac. No. 20. Department One.-July 12, 1895.] EUGENE J. GREGORY ET AL., APPELLANTS, v. M. H. DIGGS ET AL., RESPONDENTS.

APPEAL DISMISSAL FILING POINTS AND AUTHORITIES.-A motion to dismiss an appeal for failure of the appellant to file points and authorities within the time limited by rule II of the supreme court will be denied, if a document purporting to be such points and authorities has been filed within the time limited. On such motion the court will not examine the document filed for the purpose of determining its sufficiency.

MOTION to dismiss appeals from an order of the Superior Court of Yolo County refusing an injunction and. from a judgment in favor of the defendants. W. H. GRANT, Judge.

The facts are stated in the opinion of the court.

Armstrong & Bruner, for Appellants.

E. B. Mering, and C. W. Thomas, for Respondents.

The COURT.-The respondents have moved to dismiss the appeals herein for failure on the part of the appellants to file their points and authorities within the time limited by rule II. The notice of appeal shows that the appeal is taken from an order refusing an injunction, and also from a judgment in favor of the defendants. Although the plaintiffs have included three defendants in their action they seek from them different relief—an injunction against Diggs alone and damages against them. all. The order refusing the injunction and the judgment in favor of the defendants were made at the same time and in the same entry upon the records of the court with the order sustaining the defendants' demurrer to the complaint, and the appeals therefrom have been brought here upon a single record.

A document entitled "Opening Brief for Appellants" was filed within due time after the transcript was filed, but it is now claimed by the respondents that this brief applies only to the appeal from the order refusing the

injunction, and that it has no reference to the appeal from the judgment. We cannot, however, determine whether the brief is so limited without an examination of its merits, and it can be readily seen that, if we should countenance this practice, a respondent would be able to obtain a decision of the court upon the sufficiency of the appeal without being required to file his brief, unless such decision should be adverse.

As one of the grounds of relief sought by the complaint herein was an injunction against Diggs, if the complaint is sufficient to show that the plaintiff is entitled to this relief, an argument in support thereof would be applicable to the appeal from the judgment as well as from the order.

The motion is denied.

[S. F. No. 3.

In Bank.-July 12, 1895.]

IN THE MATTER OF THE ESTATE OF THOMAS H. BLYTHE, DECEASED. ALICE EDITH BLYTHE, APPELLANT.

ESTATE OF DECEASED PERSON-DISTRIBUTION-DISMISSAL OF APPEAL -PARTY INTERESTED.-A woman, whose asserted claim as widow of a deceased person has been finally adjudicated adversely to her on appeal, in a proceeding under section 1664 of the Code of Civil Procedure, to determine heirship and the right of succession in the estate of said deceased, thereupon ceases to be a party interested in the estate, and cannot afterward maintain an appeal from a decree distributing the estate.

ID. PROCEEDING TO DETERMINE HEIRSHIP-COSTS ON APPEAL.-An appeal by her from the decree of distribution, taken pending the final determination by the supreme court of her appeal from an order denying her a new trial in the proceeding to determine heirship, will be dismissed by the supreme court upon its affirmance of such order; and this result will follow, notwithstanding she might be entitled to recover costs upon a reversal of the decree of distribution

MOTION to dismiss an appeal from a decree of the Superior Court of the City and County of San Francisco, distributing certain property of the estate of a deceased person. J. V. COFFEY, Judge.

The facts are stated in the opinion of the court.

Henry E. Highton, for Appellant.

William H. H. Hart, Garber, Boalt & Bishop, T. I. Bergin, and W. W. Foote, for Respondent, Florence Blythe Hinckley.

HENSHAW, J.-This is a motion to dismiss the appeal of Alice Edith Blythe, prosecuted from the order and decree of the court in probate distributing certain property of the estate of Thomas H. Blythe to Florence Blythe Hinckley.

The petition for distribution of Florence Blythe Hinckley was filed on the eighteenth day of June, 1894. Alice Edith Blythe appeared and opposed the petition by demurrer and answer, and then appealed from the decree which was rendered October 26, 1894. Notice of appeal was given upon November 3, 1894. The bill of exceptions was settled upon January 15, 1895, and upon February 25, 1895, appellant's transcript upon appeal was filed with the clerk of this court.

At the time of the filing of the petition the appeal of Alice Edith Blythe from the judgment made and given in the case, entitled "Florence Blythe v. Abbie Ayres and others," had been decided adversely to her contention upon April 24, 1894 (Blythe v. Ayres, 102 Cal. 254), but her appeal from the order denying her a new trial in the same matter was pending and undetermined. Upon January 2, 1895, the last-named order was affirmed upon appeal. (Hinckley v. Ayres, 105 Cal. 357.)

The action of Florence Blythe v. Abbie Ayres et al. was a proceeding under section 1664 of the Code of Civil Procedure, to determine heirship and the right of succession and distribution in the matter of the estate of Thomas H. Blythe. Alice Edith Blythe asserted her rights as the widow of the deceased. The findings and judgment of the court were against her claim of widowhood.

This judgment and the order refusing a new trial of

the issues having both been affirmed by this court, it is contended by respondent that appellant herein has ceased to be a party in interest or to stand in a position to be in any wise affected by the questions involved upon this appeal, and that, therefore, it should be dismissed.

The decision affirming the order denying the new trial was handed down after the commencement of the proceeding sought to be reviewed upon this appeal, but it will be considered by the court in deciding this motion. It is not only a matter of which we take judicial notice, being a part of the record proceedings in one and the same estate (Hollenbach v. Schnabel, 101 Cal. 312; 40 Am. St. Rep. 57), but it is formally brought to our attention by suggestion and proof under affidavit. (First Nat. Bank v. Henderson, 101 Cal. 309.)

The affirmance of this judgment and order leaves this appellant a stranger in interest to the proceedings upon distribution. The judgment declared the rights of all persons to the estate, and to whom distribution should be made. It having been finally determined that appellant here is not one of those interested in the distribution she cannot be beneficially or injuriously affected by any decree which the court might make in the matter. And, as was said by the supreme court of the United States: "The court is not empowered to decide moot questions or abstract propositions, or to declare for the government of future cases principles or rules of law which cannot affect the result as to the thing in issue in the case before it." (California v. San Pablo etc. R. R. Co., 149 U. S. 308.)

It is the theory of the law that a litigant seeks the aid of a court, not to succeed in a claim, whether it be well or ill founded, but to have the court determine whether in truth he have any right at all, and, if so, then to define its scope and limit. The present situation of the parties to this appeal differs but in one respect, hereafter considered, from that which would have existed had the appellant, coming before the court, formally disclaimed and renounced all pretensions to heirship or succession