108 Cal. 484 | Cal. | 1895
On the 28th of February, A. d. 1894, appellant, Li Tai Wing, filed a petition in the probate court of the city and county of San Francisco, in which, with other allegations, he stated that Li Po Tai died in said city and county, March 20, 1893, testate; that by his will he nominated petitioner and his mother executor and executrix of the will; that at the time of the death of Li Po Tai, and when the will was probated, and letters testamentary were issued to his mother, petitioner was a minor, and was absent from the state of California; that his mother, Lee See, was appointed executrix April 11, 1893, and duly qualified; that afterward, on the twenty-seventh day of October, 1893, said Lee See was removed from office, and her said letters revoked; and afterward, on the fifteenth day of November, 1893, A. C. Freese, public administrator, was appointed administrator with the will annexed, to take charge of the estate, and said Freese duly qualified, and is still acting, as such administrator; that said Freese was not the husband or wife, child, father, mother, brother, or sister of said Li Po Tai, deceased.
Petitioner is the eldest son of said Li Po Tai, is over the age of twenty-one years, and a resident of the-city
Freese was duly cited to appear and answer. He filed no answer, but did appear and was allowed to contest the right of the petitioner. Petitioner bases his claims, upon the language of section 1383 of the Code of Civil Procedure, and succeeding sections. He contends that under these provisions his right to the relief asked is absolute, provided only that he be found to possess the statutory competency.
The first question to be considered is this: Has section 1383 any application where the decedent has left a will? By its terms it might seem to have been intended to apply only in cases of intestacy, but in Estate of Pacheco, 23 Cal. 476, it was applied to a case in which, like the present, there was a will, and in which the other material facts were substantially the same. It is true that the question of its applicability, although argued by counsel, was not expressly adjudicated, but the decision rests upon the tacit assumption by the court that the right to administration in the case provided for is unaffected by the fact that there is a will. In itself this decision may not be of much weight as an authority, but it was made many years ago, and has never been overruled or questioned. Meantime, the legislature has revised the statute, and re-enacted this particular section in its old form, and we are bound to suppose with the intention that it should be construed now as it was construed before the revision. In my opinion there is no reason for changing its construction. If it be said that the decision in the Pacheco case disregarded the terms of the law, it maybe answered that the court was fully justified by the whole tenor of the statute and the manifest policy of the legislature, in respect to the choice of administrators, in departing from a literal construction of this particular section. By the old Probate Act—as by the corresponding sections of the code—the legislature
And so of the case where letters of administration have been granted to some person other than the husband or wife or child of the decedent, it makes no difference whether there was a will or not, if one of the persons preferred by the law asks that the administrator (with or without the will annexed) be removed and himself appointed, his request should be granted if he is legally competent to discharge the trust.
It is argued that this conclusion does not follow, and' that this section 1383 does not apply in cases of testacy, because section 1354 is specially applicable to such cases, and confers upon the court a discretionary power to remove or retain the administrator with the will annexed as it may deem proper. But I do not think section 1354 applies where the petition for the removal of the administrator with the will annexed is based upon a right to administer conferred upon the petitioner by the statute. If the petitioner has no other right to administer except such as flows from his designation by the. decedent, then section 1354 applies, and the granting or refusal of the petition rests in the sound discretion of the court. But when the petition is based upon- the statutory right to administer, then section 1383 applies, and if the petitioner is not incompetent by rea
But although the objection that section 1383 does not apply is the point principally relied on by respondent to support the order of the superior court denying the petition of Li Tai Wing, it does not appear that this was the ground of the decision. The superior court found that Li Tai Wing was not competent, and that he had been previously adjudged incompetent to discharge the trust, and on these grounds denied his petition. The question is whether the evidence sustains these findings.
In my opinion it does not. The only evidence of incompetency was directed to the point that the petitioner had not sufficient understanding ( Code Civ. Proc., sec. 1350), and it only proved that he could not speak the English language, and was not instructed as to the constitution of the state.
These facts do not show lack of understanding, and the other evidence showed that the petitioner was a man of intelligence and education.
Nor was there any prior adjudication of want of understanding. The petitioner had made an application under section 1354, which had simply been denied without any reason assigned and without any finding of fact. The denial of the former petition does not imply a finding of incompetency, because there are various other grounds upon which it might have been denied. (Code Civ. Proc., sec. 1911.)
The order appealed from is reversed.
Van Fleet, J., McFarland, J., and Henshaw, J., concurred.
Rehearing denied.
