Towner v. Stimson

DORAN, J.

John Andrew Pardue died testate in the state of California, leaving an estate of real and personal property. In his will he nominated Security-First National Bank of Los Angeles to act as executor. Security-First National Bank of Los Angeles was a creditor of the decedent and for that reason refused to act. Naomi Towner, a legatee and devisee under the will, filed a petition for probate of the will and requested that letters of administration be issued to her. Carrie Phillips, a sister of decedent, and a devisee under the will, residing in the state of North Carolina, assigned an undivided one-eighth interest of her interest in the estate of decedent to Marshall Stimson and also nominated Marshall Stimson to act as administrator of the estate of decedent. Marshall Stimson also filed a petition to probate the will and for issuance of letters to himself. The two petitions came on regularly for hearing before the court. Both petitions prayed that the will be probated. The only issues raised were the rights of the respective applicants to have letters of administration issued.

The court found, in part, that Naomi Towner and Marshall Stimson were each interested in the estate of decedent, Naomi Towner as a devisee and Marshall Stimson as an assignee of a devisee, and as such each was equally entitled to letters of administration; and that Carrie Phillips was not a resident of the state of California. From such findings the court concluded that Carrie Phillips, as a nonresident, was not entitled to nominate an administrator of the estate of decedent, and that Naomi Towner, as a creditor of the estate, was entitled to priority of appointment over Marshall Stimson, as one interested in the estate. The judgment was entered accordingly.

[180]

The appeal herein raises but one issue, namely, that the “court erred”, as contended by appellant, “in denying to Marshall Stimson the priority right of appointment resulting from his nomination by Carrie Phillips, a nonresident sister, and a devisee under the will”.

The determination of the question depends upon the interpretation of sections 420, 422 and 423 of the Probate Code, and in this connection appellant contends that, “To read into these sections as amended, that nonresidence disqualifies an heir to nominate, can be done in no other way than by judicial legislation for if the legislature intended to deny a nonresident the right to nominate, it could and should have said in section 423—‘administration may be granted to one or more persons not otherwise entitled to the same, at the written request of the person entitled who is a resident of California filed in court’, but such is not the case, for section 423 contains no such restriction.” Respondent, on the other hand, replies that “it would have been a very easy matter for the Legislature to have provided that a nonresident person, such as a brother or sister, would have the right of nomination the same as the surviving spouse, if the Legislature had any such intention of doing so.”