56 Cal. 322 | Cal. | 1880
On the 3rd day of July, 1881, Isaac M. Wooten, a resident of Stanislaus County, died intestate in that county, leaving an estate therein. There survived him, as heirs to his estate, a widow and one child, Hiram Wooten; and also two brothers, one of the whole-blood and another of the half-blood—all resi
After the order of revocation, a motion was made for a new trial, which was denied; and from the order denying a new trial, and the order of revocation, the administrator de bonis non appeals, and assigns as error, that, on the trial of the issues made by the pleadings in the proceedings against him, the Court below erred:
1. In denying a motion made by him for judgment on the pleadings.
2. In failing to find upon issues made by the pleadings.
3. In ordering a revocation of his letters of administration.
The proceedings for the revocation of the letters granting to
the administrator de bonis non were commenced by petition filed by Sarah A. Adams, as guardian of the minor child of the deceased.
Upon being served with citation, the administrator appeared, and, assuming the position of a contestant, filed what he called objections or grounds of opposition to the petition. When the matter came on for hearing, upon a day fixed for that purpose, the petitioner had not made or filed any demurrer or answer to these objections, and the administrator moved for judgment upon the pleadings, but this motion was denied.
In support of his right to judgment for want of a demurrer or answer, he relies upon Fitzgibbons v. Calvert, 39 Cal. 261; Felch v. Beaudry, 40 id. 443; Gay v. Winter, 34 id. 160; and §§ 1312 to 1318 of the Code of Civil Procedure.
These sections relate to proceedings in Probate Courts “ in contests against the probate of wills.” When a petition is filed for probate of a will, and any one interested in the estate appears to contest it, he is required, by the provisions of § 1312, to file
There is no doubt, if a pleading which is necessary to be answered is sufficient in itself, and is not answered at all, or if an answer to it is filed, which admits or does not deny its material allegations, that a party is entitled to judgment upon it. (Fitzgibbons v. Calvert, Felch v. Beaudry, Gay v. Winter, supra.) But the proceeding in hand was regulated by the provisions of article ii of the Code of Civil Procedure, which was made applicable to proceedings in the Probate Court, except where otherwise provided. (§ 1718, Code Civ. Proc.) And according to these provisions of the Code, the only pleadings allowed on the part of the defendant arc: 1. The demurrer to the complaint; 2. An answer; and the only pleading allowed on the part of the plaintiff to an answer is a demurrer (§ 422, Code Civ. Proc.), unless the answer contains a cross-compláint. As no answer was required to the grounds of opposition filed as an answer to the petition, the Court did not err in denying the defendant’s motion for judgment.
There was an allegation in the petition, that the administrator wras consuming and frittering away the estate in idle and needless litigation. This the defendant denied. The plaintiff offered
But it was not error to reject an offer of testimony by the defendant, upon an allegation in the complaint which was denied by the answer, but to prove which the plaintiff had offered no testimony whatever. Such an allegation of fact, unsustained by any testimony, is not true in law, and proof that it is not, is Avholly unnecessary, and if offered may be rejected; for a court is not bound, if there is no evidence at all gÍAren in support of the affirmative of an issue, to hear evidence in support of the negative. But the alleged fact was not of itself material to the rights of the plaintiff in the proceeding; for if, by virtue of the rights which she ¿laimed, and her fitness for the office, she was entitled to a revocation of the letters of administration which had been granted to the defendant, and to a grant of letters to herself, her cause of action Avas complete, even if the defendant had not been guilty of maladministration. Being an immaterial fact, unsustained by any proof on the part of the plaintiff, it Avas unnecessary to find it, although it Avas alleged on the one hand and denied on the other.
But the principal question on the merits, was the right of the petitioner to have the letters of administration cle bonis non revoked, and to have herself appointed administratrix.
First of all, the widow was entitled to administer upon her husband’s estate; next, the guardian of the minor child; and, after him, there being no father or mother, the brothers. The widoAY had died. The child, being under age, was not competent to serve, and at the time of the appointment of the defendant, it does not appear that the child had any guardian; but whether he had or not, as a guardian failed to appear and assert his right to letters of administration upon the estate, the Court rightfully granted letters to the defendant; but he held the same, subject thereafter to the assertion of the prior right in the guardian of the child.
A prior right to letters of administration on an estate may be asserted at any time against one who has obtained a grant of
The Court below has found all the facts necessary to entitle the plaintiff to administer upon the estate, and to a revocation of the letters of administration formerly granted to the defendant, and we see no error in the record which prejudices the defendant.
Order affirmed.
McKinstry, J,5 and Ross, J., concurred.
