104 Cal. 623 | Cal. | 1894
Timothy Donovan died intestate in Santa Clara county in this state, leaving an estate in said county.
Appellant and respondent each applied for letters of administration, the latter being the public administrator of said county. John Donovan, a brother of the deceased, requested the appointment of appellant. This request was denied, upon the ground that John Donovan was not a bona fide resident of this state, and therefore not entitled to administer the estate, under section 1369 of the Code of Civil Procedure, nor competent to nominate another under section 1379 of the same code. (See Estate of Beech, 63 Cal. 458, and In re Bedell, 97 Cal. 339.)
The sole question, therefore, is whether John Donovan was, at the time he made the request, a bona fide resident of this state. If he was, he was first entitled to administer, and so had the right • to nominate appellant.
Timothy Donovan died January 10,1894. John Donovan was then residing, and for about thirty-eight years had resided, at Chicopee, in the state of Massachusetts. On January 20,1894, he, and others entitled to share in the estate, signed and forwarded to appellant a written request for his appointment as administrator, and, on January 25th, appellant filed his petition praying that letters of administration be issued to him. Both petitions came on for hearing February 9, 1894.
Three days before the hearing John Donovan arrived in California, and on the day of the hearing filed a written request for the appointment of appellant, describing-
The witness gave other testimony of like character upon cross-examination, and upon redirect examination he was asked: “You are now a resident of this state, are you? A. Yes, sir. Is it your intention to remain? A. I cannot tell that. I will remain here if I can; as long as I can. It is my intention to remain here.”
When he came he brought an unmarried daughter with him, leaving his wife with a married son and daughter in Massachusetts.
We think the evidence failed to show that John Donovan was á bona fide resident of this state.
Appellant contends that the court was bound by the direct evidence of the witness that he was a resident. But it was conceded that for many years he was a resident of Massachusetts, and “union of act and intent are necessary to make a change of residence.” (Pol. Code, sec. 52.) He'had been in this state but three days, and nothing could be inferred from his presence for so short a time as to his intention in coming, and it was for the court to determine from the whole of his testimony what his intention was.
Appellant cites Hanson v. Graham, 82 Cal. 631. That case does not sustain his contention. The question there was as to what constituted nonresidence under the attachment laws. It was there said (p. 633): “ In stat
The order refusing to appoint appellant and the order appointing respondent should each be affirmed.
For the reasons given in the foregoing opinion the orders appealed from are affirmed.