MR. JUSTICE FARR
delivered the opinion of the court.
This is an appeal from the order refusing to grant the appellants’ petition to revoke the letters testamentary issued to Ulrich W. Deschamps and Arthur R. Deschamps, in the estate of Gaspard Deschamps, deceased.
Appellants are children of the deceased and devisees under his will, and the respondents are two of the children, sons, and the executors named in the will. The devisees under the will are the widow and the children. The mother and one child, a daughter, did not join in the petition. The removal is sought because it is claimed that the two executors are unlawfully and wrongfully withholding from the estate of Gaspard Deschamps, deceased, lots 12 and 13 of block 21 of the C. P. Higgins addition to the city of Missoula, with the improvements thereon and the income therefrom, and are committing a fraud upon the appellants as such devisees of the estate of Gaspard Deschamps, deceased, in failing to inventory said property or to account for the same as the property of the estate. The following are the facts and the respective contentions:
This property was purchased by Gaspard Deschamps, the decedent, in his lifetime, for the consideration of $25,000 paid by him. The deed was taken in the name of his two sons, Ulrich "W. Deschamps and Arthur R. Deschamps, the respondents, in whose name the record title now stands. They, as individuals, claim to be the owners, in possession and entitled to possession, of the property, and to be entitled to the rents and income therefrom, which they have collected and now have, upon the theory that the property was given to them by their father upon its purchase, and was so accepted by them as a gift. They refuse to account for this property in any' way as executors of the estate because of their claim of ownership and right of possession of it. The petitioners, the appellants herein, claim that the executors of the estate are entitled to the possession of, and to the rents [212]*212and income from, this property upon the theory that, the consideration for the property, at the time of its purchase, having been paid by their father and the title deed thereto taken in the name of the sons, a trust resulted in favor of the father by virtue of section 6785, Revised Codes of 1921, which trust upon his death inured to his devisees or to his estate; that, by reason of the failure of the executors to account for the property or to have a trust declared therein for the heirs of the estate, they should be removed and some one appointed in their stead, with the object in view that such new representatives of the estate should bring an appropriate action against the two sons as individuals to divest them of the title and possession of the property, and to recover the same, together with the income therefrom, for the estate.
There is not anything in the record to show the status of the administration of the estate or its condition, either at the time of the filing of the petition for removal or at the time of the making of the order of dismissal, other than that it was then in process of administration, except that it does appear that an inventory and an appraisement had been filed by the executors in which this property is neither listed nor accounted for by them.
Upon the death of Gaspard Deschamps all the property of his estate, devised by him by will to his widow and children, vested in them from the moment of his death (sec. 7040, Rev. Codes 1921, formerly sec. 4787, Rev. Codes 1907; In re Pearson’s Estate, 113 Cal. 577, 45 Pac. 849, 1062; Hinds v. Wilcox, 22 Mont. 4, 55 Pac. 355; Gelsthorpe v. Furnell, 20 Mont. 299, 39 L. R. A. 170, 51 Pac. 267; Rumney v. Skinner, 64 Mont. 75, 208 Pac. 895), subject to the right of the executors to the possession of the same for the purposes of administration, until the estate is settled or until delivered over by order of the court or judge to the devisees (sec. 10138, Rev. Codes 1921, formerly sec. 7502, Rev. Codes 1907; Martinovich v. Marsicano, 137 Cal. 354, 70 Pac. 479). The [213]*213title of the devisees does not originate either in the probate of the will or in the decree of distribution that may be or that has been entered, but title comes from the deceased through the will the instant of his death.
The probate of the will merely declares, in a general way, the existence of facts which have previously occurred, and furnishes official evidence of those facts. (In re Patterson’s Estate, 155 Cal. 626, 132 Am. St. Rep. 116, 18 Ann. Cas. 625, 26 L. R. A. (n. s.) 654, 102 Pac. 941.) The decree of distribution serves only to release the property from the conditions to which, as the estate of a deceased person, it was subject. (Bates v. Howard, 105 Cal. 173, 38 Pac. 715; Estate of Vance, 152 Cal. 760, 93 Pac. 1010.) The rights and duties of the executors of the estate intervene between the vesting of title and the right of possession. (Holland v. McCarthy, 177 Cal. 507, 171 Pac. 421.) But these rights and duties are only such as are incident or necessary to the proper administration of the estate, such as the payment of the debts of the decedent, the expenses of administration, and the family allowance. (In re Tuohy’s Estate, 33 Mont. 230, 83 Pac. 486.) Their right to possession is commensurate with the right or duty imposed by statute. Subject to the possession of the executors for these purposes of administration the devisees may at once sell and dispose of their property, or otherwise handle it, as they desire. (Brenham v. Story, 39 Cal. 179; Smith v. Olmstead, 88 Cal. 582, 12 L. R. A. 46, 22 L. R. A. 336, 26 Pac. 521; Phelps v. Grady, 168 Cal. 73, 141 Pac. 926.)
Assuming for the purpose of this argument only, that the title to the real property in question was held by the two sons in trust for their father as the cestui que trust, is the possession of such property by the executors in their representative capacity during any period of the administration of the estate necessary for any of the purposes of administration? If there were debts of the estate, expenses of administration or family allowance to be paid, any of which would require that the rents and profits be applied thereto, or that [214]*214the property be sold to satisfy such objects, then there might be merit in appellants’ contention, and it may be assumed that, if the record were in such a condition that it could be said that any character of an action should be brought by a representative of the estate, as such—that is, in their representative capacity—such a conclusion or finding would require that the present executors be removed, and someone appointed in their stead for that purpose, because it is obvious that they could not, as executors, sue themselves as individuals. The executors being entitled to the possession of all of the property of the estate for the purposemf administration, the question is then: Was possession required of this real property in question by them for any of the purposes of administration of the estate, such as the payment of debts, the expenses of administration, or family allowance?
Eor all that appears from the record, the estate may have had sufficient cash on hand or income-producing property, entirely ample without recourse to the property in question, for the purposes of paying the debts, if any, the expenses of administration, and the family allowance. But, so far as appears, there may not be any debts.
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MR. JUSTICE FARR
delivered the opinion of the court.
This is an appeal from the order refusing to grant the appellants’ petition to revoke the letters testamentary issued to Ulrich W. Deschamps and Arthur R. Deschamps, in the estate of Gaspard Deschamps, deceased.
Appellants are children of the deceased and devisees under his will, and the respondents are two of the children, sons, and the executors named in the will. The devisees under the will are the widow and the children. The mother and one child, a daughter, did not join in the petition. The removal is sought because it is claimed that the two executors are unlawfully and wrongfully withholding from the estate of Gaspard Deschamps, deceased, lots 12 and 13 of block 21 of the C. P. Higgins addition to the city of Missoula, with the improvements thereon and the income therefrom, and are committing a fraud upon the appellants as such devisees of the estate of Gaspard Deschamps, deceased, in failing to inventory said property or to account for the same as the property of the estate. The following are the facts and the respective contentions:
This property was purchased by Gaspard Deschamps, the decedent, in his lifetime, for the consideration of $25,000 paid by him. The deed was taken in the name of his two sons, Ulrich "W. Deschamps and Arthur R. Deschamps, the respondents, in whose name the record title now stands. They, as individuals, claim to be the owners, in possession and entitled to possession, of the property, and to be entitled to the rents and income therefrom, which they have collected and now have, upon the theory that the property was given to them by their father upon its purchase, and was so accepted by them as a gift. They refuse to account for this property in any' way as executors of the estate because of their claim of ownership and right of possession of it. The petitioners, the appellants herein, claim that the executors of the estate are entitled to the possession of, and to the rents [212]*212and income from, this property upon the theory that, the consideration for the property, at the time of its purchase, having been paid by their father and the title deed thereto taken in the name of the sons, a trust resulted in favor of the father by virtue of section 6785, Revised Codes of 1921, which trust upon his death inured to his devisees or to his estate; that, by reason of the failure of the executors to account for the property or to have a trust declared therein for the heirs of the estate, they should be removed and some one appointed in their stead, with the object in view that such new representatives of the estate should bring an appropriate action against the two sons as individuals to divest them of the title and possession of the property, and to recover the same, together with the income therefrom, for the estate.
There is not anything in the record to show the status of the administration of the estate or its condition, either at the time of the filing of the petition for removal or at the time of the making of the order of dismissal, other than that it was then in process of administration, except that it does appear that an inventory and an appraisement had been filed by the executors in which this property is neither listed nor accounted for by them.
Upon the death of Gaspard Deschamps all the property of his estate, devised by him by will to his widow and children, vested in them from the moment of his death (sec. 7040, Rev. Codes 1921, formerly sec. 4787, Rev. Codes 1907; In re Pearson’s Estate, 113 Cal. 577, 45 Pac. 849, 1062; Hinds v. Wilcox, 22 Mont. 4, 55 Pac. 355; Gelsthorpe v. Furnell, 20 Mont. 299, 39 L. R. A. 170, 51 Pac. 267; Rumney v. Skinner, 64 Mont. 75, 208 Pac. 895), subject to the right of the executors to the possession of the same for the purposes of administration, until the estate is settled or until delivered over by order of the court or judge to the devisees (sec. 10138, Rev. Codes 1921, formerly sec. 7502, Rev. Codes 1907; Martinovich v. Marsicano, 137 Cal. 354, 70 Pac. 479). The [213]*213title of the devisees does not originate either in the probate of the will or in the decree of distribution that may be or that has been entered, but title comes from the deceased through the will the instant of his death.
The probate of the will merely declares, in a general way, the existence of facts which have previously occurred, and furnishes official evidence of those facts. (In re Patterson’s Estate, 155 Cal. 626, 132 Am. St. Rep. 116, 18 Ann. Cas. 625, 26 L. R. A. (n. s.) 654, 102 Pac. 941.) The decree of distribution serves only to release the property from the conditions to which, as the estate of a deceased person, it was subject. (Bates v. Howard, 105 Cal. 173, 38 Pac. 715; Estate of Vance, 152 Cal. 760, 93 Pac. 1010.) The rights and duties of the executors of the estate intervene between the vesting of title and the right of possession. (Holland v. McCarthy, 177 Cal. 507, 171 Pac. 421.) But these rights and duties are only such as are incident or necessary to the proper administration of the estate, such as the payment of the debts of the decedent, the expenses of administration, and the family allowance. (In re Tuohy’s Estate, 33 Mont. 230, 83 Pac. 486.) Their right to possession is commensurate with the right or duty imposed by statute. Subject to the possession of the executors for these purposes of administration the devisees may at once sell and dispose of their property, or otherwise handle it, as they desire. (Brenham v. Story, 39 Cal. 179; Smith v. Olmstead, 88 Cal. 582, 12 L. R. A. 46, 22 L. R. A. 336, 26 Pac. 521; Phelps v. Grady, 168 Cal. 73, 141 Pac. 926.)
Assuming for the purpose of this argument only, that the title to the real property in question was held by the two sons in trust for their father as the cestui que trust, is the possession of such property by the executors in their representative capacity during any period of the administration of the estate necessary for any of the purposes of administration? If there were debts of the estate, expenses of administration or family allowance to be paid, any of which would require that the rents and profits be applied thereto, or that [214]*214the property be sold to satisfy such objects, then there might be merit in appellants’ contention, and it may be assumed that, if the record were in such a condition that it could be said that any character of an action should be brought by a representative of the estate, as such—that is, in their representative capacity—such a conclusion or finding would require that the present executors be removed, and someone appointed in their stead for that purpose, because it is obvious that they could not, as executors, sue themselves as individuals. The executors being entitled to the possession of all of the property of the estate for the purposemf administration, the question is then: Was possession required of this real property in question by them for any of the purposes of administration of the estate, such as the payment of debts, the expenses of administration, or family allowance?
Eor all that appears from the record, the estate may have had sufficient cash on hand or income-producing property, entirely ample without recourse to the property in question, for the purposes of paying the debts, if any, the expenses of administration, and the family allowance. But, so far as appears, there may not be any debts. If there are no creditors, or, there being creditors, the executors have sufficient assets of the estate in their hands to meet their demands without resort to the property in dispute, then there is not any reason why resort thereto should be forced.
It does appear from the inventory and appraisement that the property of the estate is inventoried at $245,114.87. If the possession of the property in dispute is not required by the executors for any of the purposes of administration, then why should they be removed for not doing that which the devisees themselves can do ? For by section 10138 of the Revised Codes of 1921 “the heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quieting title to or for partition of the same, against any one except the executor or administrator.” The phrase in [215]*215the section of the statute just quoted, “except the executor or administrator,” refers to such persons in their representative capacity, and not to the persons who are executors for acts or transactions which involve them as individuals. The appellants who are seeking the removal of the executors for cause certainly should allege and prove every element necessary for the court to pass upon in determining whether sufficient grounds exist for the removal. This they did not do.
The question is not whether an executor has the right to bring such an action as may be contemplated by the appellants; it is whether these executors may be removed for not so doing where no necessity is shown to exist therefor. We do not hold that an executor or an administrator may not bring any action contemplated by either section 10138 or by section 10258, Revised Codes of 1921, without any showing of any necessity therefor for administration purposes. There are cases, particularly from California, from which our probate law is largely taken, holding that an executor or an administrator may bring an action for the recovery of the possession of real estate against any person whomsoever, including the devisees or an heir, without being required to show any necessity, for administrative purposes, for so doing. (Rice v. Carey, 170 Cal. 748, 151 Pac. 135.) What we do hold is that they cannot be forced to take such an action without some necessity in the administration of the estate being shown, for the law does not encourage useless litigation. The burden of allegation and of proof on the question of necessity properly rests on the party seeking to require action by the executors, or their removal for failure to act.
It is appellants’ claim that the two brothers held the legal title, prior to the death of their father, in trust for him. If this be so, then, on' his death, the title—then an equity— passed to his devisees the instant of his death. Upon his death they were clothed by operation of law with the same title to the property in controversy their father had. (Smith v. Olmstead, supra.) That the devisees of a will may [216]*216bring any action that may be proper in order to either obtain possession of, or quiet title to, or to declare a trust in, any property which has been devised to them, against anyone except the executor or administrator in their representative capacity, is well settled. (Janes v. Throckmorton, 57 Cal. 368; Field v. Andrada, 106 Cal. 107, 39 Pac. 323; Cook v. Elmore, 25 Wyo. 393, 171 Pac. 261; Larrick v. Heathman, 288 Mo. 370, 231 S. W. 975; Costello v. Cunningham, 16 Ariz. 447, 147 Pac. 701.) Whether an executor or an administrator may bring an action to establish a trust in realty the court does not decide, as the determination of such a question is not necessary to a decision of this ease. They certainly are neither necessary nor indispensable parties to any action brought by the heirs for that purpose. (Alexander on Wills, sec. 1742, and cases there cited.)
Rehearing denied January 2, 1923.
For the reasons given the order appealed from is affirmed.
Affirmed.
Associate Justices Holloway and Galen concur.