125 P. 1055 | Cal. | 1912
The deceased died intestate, and Clarence Martin, a nephew and heir (being a son of a deceased brother of deceased), was appointed administrator of his estate on October 19, 1911. Letters of administration were issued to said Clarence Martin on October 24, 1911. On November 29, 1911, John Martin, a son of Andrew Martin, who is a brother of deceased and one of his heirs, at the written request of his father, filed his petition under section 1383 of the Code of Civil Procedure, for the revocation of such letters of administration issued to Clarence Martin, and asking that he, John Martin, be appointed administrator of said estate. Said Andrew Martin, father of said petitioner, is in all respects competent to serve as administrator, except that he is a nonresident of the state, being a resident of Ireland. For this reason he is neither competent nor entitled to serve as administrator. (Code Civ. Proc., sec. 1369) The petitioner himself is a resident of this state and in all respects competent. The lower court finding that Andrew Martin was incompetent to be appointed by reason of nonresidence, concluded that petitioner had no right under section 1383 of the Code of Civil Procedure, to a revocation of the letters theretofore granted to Clarence Martin, the theory being that such section authorized the revocation of letters only upon the petition of a relative who is himself competent to serve as administrator, or upon the petition of a competent nominee of such a relative who is himself competent. It therefore denied the petition. This is an appeal by said petitioner from the order denying his petition.
Section 1383 of the Code of Civil Procedure, provides: "When letters of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration, by presenting to the court a petition praying the revocation, and that letters of administration may be issued to him." The words "who is competent, or any competent person at the written request of any one of them" were inserted in this section by amendment April 16, 1880. (Amendments to Codes 1880, p. 80.) Sections 1384 and 1385 of the Code of Civil Procedure, *442 provide for the notice and hearing on such petition, and the latter section provides that "if the right of the applicant is established, and he is competent, letters of administration must be granted to him, and the letters of the former administrator revoked." By section 1369 of the Code of Civil Procedure, it is provided that "no person is competent or entitled to serve as administrator or administratrix" who is 1, under the age of majority, 2, not a bona fide resident of the state, 3, convicted of an infamous crime, 4, adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity.
It is not disputed that Andrew Martin by reason of his nonresidence was not "competent or entitled to serve as administrator" (Code Civ. Proc., sec. 1369), and that he was therefore not entitled to personally petition under section 1383 of the Code of Civil Procedure for the revocation of the letters theretofore granted to Clarence Martin. Does section 1383 of the Code of Civil Procedure, give his nominee any greater right in the matter than he himself has? Was it the intent of the framers of the amendment of 1880 to that section to give to a relative named therein the right, under the circumstances set forth therein, to clothe any competent person not otherwise entitled to administer, with the authority to obtain a revocation of the letters previously issued to another and a grant of letters to himself, although he (such relative), could not ask for such revocation or be appointed administrator, by reason of his own incompetency? This is the question presented by this appeal.
The meaning of section 1383 of the Code of Civil Procedure, in this regard is not entirely free from doubt, but we are of the opinion that the lower court was correct in its conclusion that the section authorizes the revocation of letters already granted only upon the petition of one of the designated relatives who is competent to serve as administrator, or the petition of a nominee of such a one, i.e., the nominee of one who is himself competent to serve as administrator. Taking the section as it stands, without regard to other sections of our Probate Act, and looking solely to its general purpose, such would appear to be a fair construction of its provisions. The general purpose of the section has been declared to be *443
to allow a prior right to letters to be asserted against one who has obtained a grant of letters by virtue of a secondary right — to permit the former administrator to be superseded by a person of another and superior claim. (See Estate of Wooten,
When we consider the section in the light of the well settled law as to the rights of such relatives, other than a surviving husband or wife, on an original application for letters of administration, this would appear to be almost the necessary construction. Section
Much reliance is placed by appellant on the fact that the amendment to section 1383 was made within a few weeks after this court decided the case of Estate of Cotter,
It may be that there is no good reason why any heir should not be placed in the same position in the matter of obtaining letters in the first instance as is the surviving husband or wife, that is with the absolute right to nominate in his place, even if incompetent by reason of nonresidence, some competent person to act in his place, who shall have the same right to letters that he would have if a resident of the state. That, however, is a matter within the legislative domain. As has been said by this court, "there have been, at various times, so many amendments to the code concerning the right of administration, that it is quite difficult to extract a harmonious system." (Estate of Kelly,
The order appealed from is affirmed.
Shaw, J., and Sloss, J., concurred.