127 P. 1034 | Cal. | 1912
Deceased died testate on April 3, 1911, in Prince Edward Island, Canada, a resident of said island. By his will he gave all his property to his mother, Annie Rankin, a nonresident of this state, and appointed as executor one Arthur A. Bartlett, also a nonresident. A portion of his property consisted, of an orange grove situate in Riverside County, California. His will was duly admitted to probate by the court of probate of wills of said island. Subsequently a copy of the will and the probate thereof, duly authenticated, was filed in the superior court of Riverside County by one W.C. Fraser, with a petition for its probate in this state and the issuance to him of letters of administration with the will annexed, he claiming to be a "person interested in the will," by virtue of certain assignments of interests in the estate made by said Annie Rankin, the sole devisee and legatee. The public administrator of Riverside County filed his opposition to the granting of such letters to Fraser and his petition for the issuance of such letters to himself. The trial court admitted the will to probate in this state, denied the application of the public administrator, and ordered the issuance of letters of administration with the will annexed to Fraser, as a person interested in the will. The assignments under which Fraser claimed were three in number, each being a written instrument made by said Annie Rankin as "the sole beneficiary under the will" of deceased, and each purporting to assign and transfer to said Fraser a specified sum of money "which may be coming to me as an heir at law of the said Coun D. Rankin, deceased, under the terms of his will." It was shown over the objection of Fraser that the same was immaterial, incompetent, and irrelevant, that no valuable consideration was paid by Fraser for any of said assignments.
This is an appeal by the public administrator from the order of the superior court, the only controversy being as to *140 the respective rights of Fraser and the public administrator to letters of administration with the will annexed.
It is urged that nothing passed to Fraser by virtue of any of the assignments because of the phraseology thereof, each of them being of money "which may be coming to me as an heir at law" of deceased, and Mrs. Rankin taking solely as devisee and legatee. This construction of the assignments is too technical. It is impossible to fairly construe the instruments otherwise than as intended to transfer portions of the interest of Mrs. Rankin as "beneficiary under the will," coming to her "under the terms of" the will of deceased.
It is immaterial so far as the public administrator is concerned that nothing of value was paid by Fraser for any of the assignments. Mrs. Rankin of course had the right to give any portion of her interest under the will to Fraser if she saw fit to do so, and the public administrator could not be heard to question the effect of the assignments either on the ground that the same constituted mere gifts, or that a consideration recited was not in fact paid.
The situation in regard to the assignments being as we have stated, the action of the trial court in awarding letters of administration with the will annexed to Fraser as against the public administrator was correct, in view of the decisions of this court.
Section 1323 of the Code of Civil Procedure contained in the article relative to probate of foreign wills provides "when a copy of the will, and the probate thereof, duly authenticated, shall be produced by the executor, or by any other person interested in the will, with a petition for letters," it shall be filed, and that after proper notice and proofs there shall be "letters testamentary or of administration issued thereon." It was squarely decided in Estate of Bergin,
In Estate of Richardson,
From what we have said it is clear that 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, if competent to serve 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." This is the effect of sections 1323 and 1324 of the Code of Civil Procedure, as construed by this court in the cases we have cited.
The order appealed from is affirmed.
Shaw, J., and Sloss, J., concurred.