291 P. 193 | Cal. | 1930
THE COURT.
Louis V. Olcese died, intestate, leaving an estate in the county of Kern, of which county he was a resident at the time of his death. From the record before us it appears that he was unmarried and childless, his nearest relatives surviving being Victor Olcese, a brother, and Margaret Olcese, Minnie Stoakes and Jennie Causa, sisters, all being residents of California and of lawful age. *264
On August 28, 1929, Margaret Olcese, Minnie Stoakes and Victor Olcese filed a petition praying that letters of administration be issued to them. On August 30, 1929, the Bank of Italy National Trust and Savings Association filed its petition asking that letters be issued to it as the nominee of the third sister, Jennie Causa, she having filed a waiver of her right to act as administratrix together with a nomination of the bank. The two petitions were heard together pursuant to the provisions of section
In the order appointing the bank as administrator and denying the application of appellant and his two sisters, the court, among other things, found that "petitioner Victor Olcese is hereby found and adjudged by the Court to be incompetent . . . by reason of want of understanding. . . ."
After appellant had perfected this appeal respondent moved to dismiss the same on the principal ground that the petition of Victor Olcese, Margaret Olcese, and Minnie Stoakes was and is a joint petition, and that two of the said petitioners have not seen fit to appeal, and that Victor Olcese, individually, is not therefore a party aggrieved by the order denying the joint application. By stipulation the appeal and motion to dismiss have been submitted for decision together.
On the appeal the principal question involved is whether when there are four persons of the same class equally entitled to letters under section
The two principal code sections involved are
"Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned . . . in the following order:
"1. The surviving husband or wife, or some competent person whom he or she may request to have appointed . . .
"4. The brothers and sisters . . .
"9. Any person legally competent . . ."
Section 1379, so far as pertinent here, provides:
"Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in this court . . ."
Also drawn into the discussion is section
"When there are several persons equally entitled to the administration, the court may grant letters to one or more of them . . ."
The problem involved simmers down to the question as to whether, under section 1379 of the Code of Civil Procedure, the court may in its discretion appoint a nominee of one of the persons of a certain class over the protest of one or more of the same class — does the nominee step into the shoes of the nominator in this respect? Or, stated in another way, is the "person entitled" within the meaning of section 1379, any one of a group composing a class within the meaning of section
The only authority to which we have been referred by either counsel that is at all in point on this question is the Estateof Myers,
"The three daughters named being equally entitled to letters, the question we are asked to decide is whether or not Ann Baker, a daughter of deceased, was, as a matter of strict right, entitled to letters in preference to the nominee of both of the other daughters."
The court based its decision affirming the trial court on the following reasoning (p. 697):
"It is claimed by appellant that the nominee of a person of a particular class, as here the nominee of certain daughters, steps into the shoes of the nominators, and is entitled to all the rights of another daughter of the same class, and by virtue of section 1379, the court is clothed with discretionary power to choose between the nominee and the daughter claiming the right to administer. . . . Appellant claims that the provisions of 1379 must be read into and made to apply to all the classes other than class 1 (referring to the classes designated in
"It seems to us that the effect of the action taken by the two sisters in appointing Roche, who otherwise had no right to be appointed, was to renounce their right under section
We are in accord with the reasoning thus set forth. Whatever power the court may have to grant letters to a nominee, other than of class 1 of section
Our independent research has discovered one case where although the factual situation was somewhat different from that involved here, the reasoning employed is applicable. That case isJustice v. Wilkins,
"Any one of the nephews and nieces residing in this state, and otherwise qualified, was entitled to be appointed as administrator, and the court might have granted letters to any one or more of them. Could he legally appoint a stranger to the class, nominated by one of these nephews or nieces, unless the others who were equally entitled to administer waived their rights? In our judgment the statute is mandatory to appoint one or more of the next of kin residing in the state, who were otherwise qualified, unless they waived their rights. . . . When any one heir of a class waives the right and nominates another, the one so nominated is not to stand in the place of the other, with equal rights to administer as against the other heirs of the class, unless the person nominating is the only heir of that class."
It is true that the statute therein involved (Hurd's Rev. Stats. 1909, chap. 3) was somewhat different from the California *268 statutes here involved, but the reasoning employed in the above case is applicable here.
[1] From the foregoing reasoning we conclude that in this state a nominee of one or more members of a particular class, with the exception of class 1 of section
[3] We turn now to a discussion of the second point involved on this appeal. As already stated, the trial court found that appellant Victor Olcese was incompetent "by reason of want of understanding." We find no support for this finding in the record. In the first place it must be kept in mind that there is a strong presumption of competency operating in favor of a petitioner for letters of administration, and the burden of proof rests upon one claiming otherwise (Estate of Gordon,
The evidence in this case shows that appellant is a man forty-nine years of age, who, although never engaged in what we may term large business affairs, has been employed *269
in various capacities, and as far as appears, his services have always been satisfactory. Although a little vague as to his income, it appears that until he sold his interest in his mother's estate that income varied from time to time. It affirmatively appears that at the present time he is coexecutor with his sister, Margaret, of the estate of another deceased brother, in which estate Jennie Causa, nominator of respondent herein, is one of the heirs. Jennie Causa when questioned as to her brother's competency gave it as her opinion that he was competent. Nowhere do we find any evidence of lack of competency. Although we realize that the trial court had the opportunity to observe the appearance and demeanor of appellant on the stand and his manner of answering questions, and although we realize that that fact should be given great weight (Estate of Johnson,
Turning now to a consideration of respondent's motion to dismiss this appeal, we find that that motion must be denied. Respondent bases its motion on the following facts: The petition in which Victor Olcese joined with his sisters, Margaret Olcese and Minnie Stoakes, was, as has been heretofore mentioned, in form, a joint petition. From the order denying this petition Victor Olcese alone has appealed. Respondent therefore contends that since the petition was a joint one that Victor Olcese is not a person, individually, aggrieved by such order, and that therefore he cannot maintain this appeal. Respondent further contends that as against Margaret Olcese and Minnie Stoakes it has a vested right to the letters granted to it.
In the first place, respondent is mistaken in attempting to apply the rules applicable to civil actions to this proceeding.[4] Proceedings for the settlement of estates and matters connected therewith are not civil actions, nor are they actions at law as defined in the code. The proceeding is a special proceeding in rem and not governed by the rules applicable to civil actions generally. (Estate of Dolbeer,
[5] In the second place, the mere fact that the petition was joint in form in no way bound the trial court to grant the petition in the form asked for. The court, in its discretion could have granted letters to all three, if competent, or any two, or any one. This power is specifically conferred on the trial court by section
[7] Inasmuch as this matter for the foregoing reasons must be sent back to the trial court for further proceedings, it should be pointed out that Jennie Causa, by nominating the bank and renouncing her own right to letters, is not barred from retracting her nomination and applying in her own right. A request for appointment of a nominee does not estop the person entitled from revoking the request. (Estate of Shiels,
The orders appealed from are reversed, and the matter remanded to the trial court for further proceedings in accordance with this opinion.