265 P. 924 | Cal. | 1928
Norman W. Sayers, a resident of Pennsylvania, died testate on or about the fifteenth day of July, 1926. By his last will and testament he bequeathed his estate to his widow, Emma L. Sayers, and a number of other legatees and devisees. Among the provisions of the will he left a house and lot in Los Angeles, the only property owned by him in this state, to his daughter, Elizabeth S. Mervyn, for life with remainder over to her children. The *754 will was admitted to probate in Pennsylvania, but the executors named failing to apply for letters in California, the widow, Emma L. Sayers, filed in the superior court of Los Angeles County a duly authenticated copy of the will and its probate in Pennsylvania, together with a petition that letters of administration with the will annexed be issued to Sam West, a resident of this state. Elizabeth S. Mervyn, the daughter, also a resident of this state, thereupon filed a petition for the probate of the will and asked that she be appointed administratrix with the will annexed. At the same time she filed objections to the appointment of the widow's nominee, urging as grounds of contest that Mrs. Sayers was a nonresident, that she had no interest in the California property, and was not entitled to succeed to any portion of it. The two petitions were heard at the same time. The court admitted the will to probate as a foreign will, and sustained the objections of Elizabeth S. Mervyn to the appointment of West on the ground that the widow was not entitled to succeed to any part of the estate under the jurisdiction of the court. It found that Elizabeth S. Mervyn was entitled to succeed to the whole of the estate in California by life estate with remainder to her children, and made its order appointing her administratrix with the will annexed. The surviving wife appeals.
[1] The sole point to be considered is whether a nonresident surviving wife, who takes nothing in this state under the will, is entitled to letters in preference to a resident daughter to whom the decedent bequeathed all of his property in California. Appellant contends that the provisions of the code dealing specially with the subject matter of foreign wills must prevail over all conflicting provisions arising out of the same subject matter, and that as a "person interested in the will" (sec. 1324, Code Civ. Proc.), she, although herself disqualified by nonresidence, is entitled to have her nominee appointed in her place.
[2] Appellant is undoubtedly correct in her position that, if there are to be found conflicting sections in the code relating to the same subject matter, those dealing specially with the subject matter must prevail. However, it has been as uniformly held that, except in so far as there is special provision to the contrary in the article relating to foreign wills, the general provisions relating to the issuance of *755
letters control. (Estate of Meier,
Section 1350a provides, so far as is here pertinent, that if the executor named fails to apply, letters of administration with the will annexed must be issued as designated and provided for in granting letters in cases of intestacy. This section is not restricted to any class of wills, and it certainly must include foreign wills in its provisions. (Estate of *756 Coan,
Under these provisions (secs. 1350a and 1365, supra) those only are entitled to letters who, in case of intestacy, are entitled to succeed to the estate of the deceased or some portion thereof, and who, in case of testacy, take by bequest some portion of that estate. One taking nothing at all under a will is not, under these sections, entitled to letters. (Estate ofCook,
The rule seems to be now very definitely understood and settled by the later decisions of the court. In the Estate of Rankin,supra, Mr. Justice Angellotti clarified the situation when he said (p. 143): ". . . it is the well established rule in California that in the case of a foreign will, a person `interested in the will' is by virtue of that fact alone, ifcompetent to serve [italics ours] as administrator in this state, entitled to letters of administration with the will annexed as against one who, like the public administrator, is not `interested in the will.'" Still later, the court, speaking through the same justice, held that in the absence of an application for letters by the executor named in a foreign will, letters "must be granted to `any other person interested in the will' who applies for them, provided, of course, that theapplicant has the qualifications prescribed by our law for
[an] administrator. . . . As against one not `interested in the will,' a party `interested in the will,' who is in all respects competent to serve, is entitled as a matter of right to letters of administration with the will annexed by virtue of the provisions of our Code of Civil Procedure dealing especially with the subject of foreign wills." (Estate of Meier,
The order appealed from is affirmed.
Curtis, J., Preston, J., Langdon, J., Shenk, J., Richards, J., and Seawell, J., concurred. *758