Elmore v. Citizens National Trust & Savings Bank

DORAN, J.

This is an appeal from an order denying the petition of appellant Elmore, an attorney named as executor in decedent’s will, and appointing the respondent bank administrator with the will annexed. The will, which was admitted to probate, bequeathed the estate to two sons by a prior marriage. Testator also left surviving a wife, Erna Deutsch,

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a resident of Germany, who nominated the bank as administrator with will annexed, and opposed the Elmore appointment.

The trial court found that decedent’s attorney, Aaron Elmore, who had prepared and retained a copy of the will, knew of decedent’s death which occurred on February 25, 1954, and knew as early as June 4, 1954, that this instrument was decedent’s last will and “that he was named as Executor in said document; and that . . . said document was in the possession of one of decedent’s sons.” Notwithstanding this knowledge, “Aaron Elmore failed to petition for probate of said will . . . until January 27, 1957,” after the surviving spouse had caused a petition for letters of administration to be filed, “and that no good cause for such delay appears or is shown.”

As a further reason for the denial of Elmore’s belated petition, the trial court found that subsequent to decedent’s death, Elmore “gave legal advice to a portion of the persons interested in the estate, concerning transactions which affect the rights of other persons interested in the estate; that in giving such legal advice Aaron Elmore has committed himself in a manner which is adverse to the interests of such other persons,” whose rights “would be prejudiced and adversely affected” by the attorney’s appointment as executor; and that the best interests of the estate would be served by appointment of the Bank as administrator c.t.a.”

It is appellant’s contention that the testator’s expressed will concerning appointment of an executor “is strong and overpowering. Almost Absolute”; that neither mere delay in applying for letters testamentary nor adverse interest should prevent appellant’s appointment as executor; that no adverse interest was shown, and that the trial court abused its discretion in denying appellant’s petition.

Section 324 of the Probate Code provides that “If the person named in a will as executor, for thirty days after he has knowledge of the death of the testator and that he is named as executor, fails to petition the proper court for the probate of the will and that letters testamentary be issued to him, he may be held to have renounced his rights to letters, and the court may appoint any other competent person administrator, unless good cause of delay is shown.”