Estate of Johnson

TYLER, P. J.

Appeal from an order setting aside the appointment of an administratrix and revoking her letters of ad- • ministration, and also from an order appointing the public administrator of San Francisco as administrator in her place and stead. The facts are undisputed and show that one John Martin Johnson died intestate in the city and county of San Francisco and left an estate therein and a surviving widow, Katherine A. Johnson. Deceased left no other heirs or rela

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tives in California. On December 9, 1935, the surviving widow filed her petition for the administration of the estate wherein she prayed that letters of administration be issued to her or to some competent person she might nominate. The clerk fixed December 23, 1935, as the time for hearing and duly posted notices as required by statute. By inadvertence no notices were mailed to the heirs named in the petition. At the time fixed for hearing an attorney for all nonresident heirs appeared and objected to the hearing at that time on account of the absence of proof of mailing of notices to the heirs, whereupon the matter was continued until January 3,1936, without objection by anyone. On December 23, 1935, notices of the hearing were mailed to all the heirs. On January 3,1936, at the time set for the hearing, the surviving widow appeared through her attorney who filed nomination and request by the surviving widow for the appointment of her daughter, Evarista Faxon Tyler, as administratrix in her place and stead. The attorney who appeared for all the heirs except the surviving widow then and there filed written request for notices of all proceedings to be given to him as their attorney. Proof was made of the continuance and of all matters set forth in the petition for administration and the nomination by the widow of her daughter, appellant herein. No objection to the nomination was made by the attorney representing the other heirs nor from anyone else and the court appointed the daughter as administratrix. Thereupon she duly executed the bond as - required by the order of appointment and in every respect duly qualified as such administratrix and she caused notice to creditors to be published. On February 1, 1936, Phil 0. Katz, as public administrator filed notice of motion to set aside the order appointing appellant as administratrix, and on the same day filed a petition for letters of administration to himself. On March 31, 1936, the court granted the petition to set aside the appointment of the daughter as administratrix and revoked her letters, and on the same day appointed the public administrator as general administrator. Both of these orders are the subject of this appeal.