Hendricks v. Knowlton

SCOTT (Robert H.), J. pro tem.

This is an appeal from an order appointing respondent administrator with will annexed of the estate of his mother, and an appeal from an order denying petition of appellant for appointment as such administrator. Appellant also seeks to appeal from an order transferring the case from the County of Los Angeles to the County of Santa Barbara.

Ellen E. ICnowlton, decedent, died October 28, 1949, leaving a will dated February 6, 1939, and a codicil dated September 29, 1944. In her will of 1939, she set out that she had two sons, one of them being respondent David Waldo Knowlton, Jr. To him, in Article V of the will, she bequeathed substantially all of her estate, and in Article VII named him as executor without bond. Article VI forfeited the right of anyone contesting the will to share in the estate, except for the sum of $1.00.

[376]

The codicil of 1944 revoked Articles V and VII and substituted appellant as trustee in lieu of respondent as legatee under the will. The effect of this was to withdraw her appointment of respondent as executor and to provide that he should receive a small income as beneficiary under the testamentary trust which was to be administered by appellant as trustee. Respondent opposed the admission to probate of the codicil, but did not prevail. Both will and codicil were admitted to probate. Respondent concedes that because of his unsuccessful contest he is disqualified to receive the benefits of the trust and makes no claim to receive any other portion of his mother’s estate.

The question for determination in this case is whether the trial court abused its discretion in appointing respondent instead of appellant as administrator with will annexed of the estate of decedent. Under Probate Code section 422, neither party was entitled to priority. Reliance is placed by appellant on the case of

Estate of Selb,

93 Cal.App.2d 788 [210 P.2d 45], The facts of that ease, as set out on page 793, are as follows: Decedent had two children who were her only heirs, a son and a daughter. At the time of her death she owned a farm in Missouri and property in California consisting of a home located on a 5-acre tract, a small amount of cash and personal belongings located in the home. For about 13 years prior to her death her son had resided with her on the home place. By the terms of her will the farm in Missouri was devised to the children in equal shares, and the daughter was given $500 in cash, the residue going to the son. The daughter contested the will on the grounds of incompetency and undue influence. She did not prevail and under the terms of the decedent’s will forfeited any interest in the estate by her contest. The will was admitted to probate and petition of decedent’s son for letters testamentary was granted. He died before the issuance of such letters, and in turn his son, grandson of decedent, filed a petition for the issuance to him of letters with the will annexed. This grandson was the executor of his father’s estate and one of his heirs. The situation, therefore, was one in which the daughter who, by reason of her contest of the will, had no interest in the estate, and the grandson, whose interest was derived through his father’s estate and not directly as an heir of his grandmother, were both seeking appointment to administer the estate with the will annexed. The daughter was appointed by the probate court, and on appeal after reciting the above facts, the appel