L'Hommedieu v. Johnson

THE COURT.

Appeal from an order granting the Public Administrator of Contra Costa County letters of administration with the will annexed of the above estate, and denying the petition of the nominee of the surviving sister of decedent for letters.

The material part of the will is as follows: "This is a Will the first & Let us hope the last one. In writing this the object is to stop

any

of my relatives from getting a

cent

of my small estate. I want it to go to my wife Frieda. I quote here especially I do not want my sister to have one dime of my money in the past twenty years she has had enough, without repaying if my wife does not get it my wish is to buy a dog for the Blind Home on Telegraph Ave. Oakland."

[432]

Decedent’s wife predeceased him, and there was left surviving a sister, Anne C. L’Hommedieu, who is sole heir at law. The latter nominated her husband as administrator of the estate, and he has appealed from the order mentioned.

Appellant claims that the will names no residuary legatee and that consequently the sister is entitled to succeed to the residuary estate notwithstanding the attempt of the deceased to disinherit her, for which reason it was error on ttie part, of the court to refuse to appoint her nominee as administrator.

A brother or sister entitled to succeed is entitled to administer (Probate Code, sec.. 42, subd. 5), and administration may be granted to one or more competent persons, although not otherwise entitled, at the written request of one who is entitled (Probate Code, sec. 423). This section also provides that “If the person making the request is a child, parent, brother or sister of the decedent, the nominee shali have priority next after those in the class of the person making the request; otherwise the court, in its discretion, may appoint either such nominee or a person of a class subsequent in rank to that of the person making the request. ...”

The section plainly gives priority to a competent nominee of a child, parent, brother or sister of a decedent over persons in subsequent classes; and it is only as to the latter classes that the court may in its discretion appoint either a notninee or a person of a class subsequent in rank to that of the person making the request. It is not contended that the appellant is not otherwise competent to act, and if decedent’s sister is entitled to succeed to the residue of the estate the ¡court erroneously granted letters to the public administrator.