75 P. 175 | Cal. | 1904
This is an appeal from an order granting letters of administration with the will annexed upon the estate of Mary Ann Brundage, deceased, to the Union Trust Company of San Francisco, and refusing to grant such letters to Charles S. Brundage.
The deceased was a resident of New York, and left property, real and personal, in this state. By her will, which was duly admitted to probate in the state of New York, she appointed one Schafmeister, a resident of that state, executor. Six children survived her, each of whom was a devisee and legatee under the will. One of these children was her son, Charles S. Brundage, the appellant here. He was a resident of this state and competent under our laws to act as administrator of her estate. None of the other children resided in California.
The appellant filed a duly authenticated copy of the will and the probate thereof in the superior court of the city and county of San Francisco, with a petition for its admission to probate here and the issuance to him of letters of administration with the will annexed. The respondent, Union Trust Company, a corporation authorized to act as administrator, also filed its petition praying that said will be admitted to probate, and that it be appointed administrator with the will annexed. Its claim was based upon the fact that it was the *540 nominee of the non-resident executor, who had regularly requested that it be appointed, and the nominee of non-resident children, heirs, and legatees of deceased, and also upon the fact that it was a party interested in the will, by reason of being the assignee of a portion of the legacy of Mary A. Hilliard, a daughter of deceased. It was also alleged and found to be a fact that appellant claimed an interest in certain real property adversely to the estate of deceased. The superior court admitted the will to probate, and ordered the issuance of letters of administration with the will annexed to the Union Trust Company, and denied the petition of Brundage.
It is admitted that the appellant was not disqualified by reason of his adverse claim to property claimed by the estate.(Estate of Muersing,
The sections relating to the probate of foreign wills (Code Civ. Proc., secs. 1322-1324) provide that when the copy of the will and the probate thereof are produced "by the executor, or by any other person interested in the will," a hearing shall be had upon notice, and that when so admitted to probate, "letters testamentary or of administration shall be issued thereon."(Estate of Richardson,
While the statute authorizes the issuance of letterstestamentary to the non-resident executor, it does not entitle him to letters of administration, or give him the right to nominate an administrator with the will annexed. (Estate ofBeech,
Section
It is, however, claimed that respondent, by reason of the assignment to it of a portion of the legacy of a daughter of deceased, was "interested in the will," and that the court had the discretionary power to grant letters of administration to it. It has been held that the assignee of a devisee is entitled, as a person interested in the will, to administration as against the public administrator. (Estate of Engle,
The appellant had the absolute right to letters of administration with the will annexed. The order directing the issuance of such letters to the Union Trust Company and denying the petition of Charles S. Brundage is reversed and the cause remanded.
Shaw, J., and Van Dyke, J., concurred.
Hearing in Bank denied.