Estate of O'Dea

34 Cal.App.2d 179 (1939) In the Matter of the Estate of MICHAEL F. O'DEA, Deceased. BEN H. BROWN, Public Administrator, etc., Appellant,

v.

HARRIETT T. O'DEA, Administratrix, etc., et al., Respondents.

Civ. No. 12181. California Court of Appeals. Second Appellate District, Division Two.

August 21, 1939. J. H. O'Connor, County Counsel, and Ernest Purdum, Deputy County Counsel, for Appellant.

Bailie, Turner & Lake for Respondents.

McComb, J.

From an order of the superior court sitting in probate, granting a judgment of nonsuit and dismissal of appellant's petition for revocation of letters of administration issued to respondents and requesting the issuance of letters of administration to himself, appellant appeals.

These are the essential facts:

January 22, 1938, Michael F. O'Dea died intestate at Los Angeles. Thereafter letters of administration were issued to respondent Harriett T. O'Dea, a second counsin of decedent, and to respondent Citizens National Trust and Savings Bank of Los Angeles, who was nominated by Miss O'Dea as coadministrator. Subsequently, upon learning that there were three nonresident, first cousins of decedent, appellant filed a petition to have the letters of administration theretofore issued revoked and to have himself appointed as administrator of decedent's estate. The probate judge sustained an objection to the introduction of any evidence and granted a judgment of nonsuit and dismissal of the petition.

[1] These are the questions to be determined:

First: Does section 450 of the Probate Code authorize the public administrator, after letters of administration have been granted to another, upon learning that he had a prior right to said letters, to petition for revocation of the letters of administration theretofore issued and for appointment of himself as administrator?

Second: Where, after a hearing of the petition for letters of administration, the probate court makes a finding that petitioner is "the next of kin" and an "heir at law" of decedent and "entitled" to letters of administration as such, is such finding res judicata in a subsequent proceeding under section 450 of the Probate Code, when evidence is offered to prove that the prior petitioner was not "the next of kin" or an "heir at law" or "entitled" to letters of administration?