132 P. 764 | Cal. | 1913
Augusta Meier died testate in Germany, being a resident thereof and being the owner of certain real property in Riverside County at the time of her death. One Emil Glaser, a resident of Germany, was named in the will as executor. The will was admitted to probate in Germany, and Glaser appointed executor. In his capacity as executor he gave one Theresa von Breton, a resident of Los Angeles in this state, a general power of attorney to act for him herein, which, it may be assumed, was sufficient by reason of its provisions to constitute her his nominee to apply for the probate of such will in California, and for letters of administration with the will annexed therein. She was not otherwise "interested in the will," being neither a devisee or legatee, nor the assignee of any devisee or legatee. She presented to the superior court of Riverside County "a copy of the will and the probate thereof duly authenticated" (Code Civ. Proc., sec. 1323) and asked that the will be admitted to probate in California, and that letters of administration with the will annexed be issued to her. The public administrator of Riverside County, Wm. H. Polkinghorn, filed a petition asking that such letters be issued to him. The petitions were heard together, and the court made an order admitting the will to probate, and appointing said Theresa von Breton administratrix with the will annexed, and denying the petition of the public administrator. From that part of the order so appointing said Theresa von Breton and denying his own application for appointment, the public administrator appeals.
It is settled by the decisions that the article on probate of foreign wills (Code Civ. Proc., secs. 1322-1324), dealing especially, as it does, with the subject matter of foreign wills, must prevail over all conflicting provisions as to all matters and questions arising out of the subject matter of such article; and that thereunder the executor named in a foreign will is entitled to letters testamentary if he applies for such letters, and that in the absence of such an application by the executor, "letters of administration" must be granted to "any other person interested in the will" who applies for them, provided, of course, that the applicant has the qualifications *459
prescribed by our law for administrator. This has never been questioned in any opinion of this court, so far as we have been able to find, since it was first squarely declared in Estate ofBergin,
It is also uniformly held that except in so far as there is special provision to the contrary in the article on foreign wills, the general provisions relating to the issuance of letters of administration with the will annexed control. Section 1350a of the Code of Civil Procedure, formerly part of section
As we have said our decisions uniformly hold that the rules as to appointment of an administrator in cases of intestacy apply in the matter of the appointment of an administrator with the will annexed in the case of a foreign will, in the absence of special provision in the article on foreign wills. It was so expressly held in a contest for letters of administration with the will annexed between two competent persons interested in the foreign will, one a son and the other a daughter of the deceased, both being devisees or legatees under the will, where the conclusion was that the son was entitled as of right to letters over the daughter under the express provisions of section 1366 of the Code of Civil Procedure. It is to be noted that the article on foreign wills contains no provision as to priority as between two or more applicants each of whom is "interested in the will." The court said that what is now section 1350a of the Code of Civil Procedure is not restricted to any class of wills, "and it certainly must include foreign wills, in its provisions," and that such section is applicable wherever "the controversy as to who shall administer is between parties interested in the will."(Estate of Coan,
The proposition that the rules applicable in cases of intestacy apply under such circumstances as we have here has never been disputed. In Estate of Beech,
To more briefly state our conclusions as to the law in relation to the right to letters of administration with the will annexed, in the case of a foreign will, when the executor named therein does not apply for letters testamentary:
The executor named in the will, as such, is not authorized to nominate an administrator, and any attempted nomination by him is ineffectual for any purpose.
Any person "interested in the will," which term includes any devisee or legatee, or an assignee of any devisee or legatee, who is in all respects competent to serve as administrator under the laws of this state, is entitled as matter of right to such letters in preference to any person not "interested *464 in the will," by virtue of the provisions specially applicable to foreign wills.
Any attempted nomination of another as administrator by one "interested in the will" who is himself incompetent to serve as administrator under the laws of this state, except where the nomination is made by the surviving husband or wife, is ineffectual for any purpose.
Where there are applications for appointment by two or more persons "interested in the will" who are competent to serve as administrator under the laws of this state, the relative rights of the parties are determined by the rules applicable in cases of intestacy.
Where none of the applicants is "interested in the will," the rules applicable in cases of intestacy control. Such rules require the appointment of the public administrator in preference to one whose only claim, apart from the fact that he is legally competent, is based on the nomination of the executor of the will or the nomination of some one interested in the will, other than the surviving husband or wife, who is himself incompetent to serve as administrator.
In view of what we have said, the lower court erred in granting letters to respondent. She was not a party "interested in the will." Her nomination by the foreign executor was ineffectual for any purpose. She had no claim except as a "person legally competent," and as such could have been granted letters only in the absence of an application by a person with a prior right under section
So much of the order as is appealed from is reversed.
Shaw, J., Melvin, J., Sloss, J., Lorigan, J., and Beatty, C.J. concurred. *465