Wanamaker v. Wanamaker

California Court of Appeal Jan 3, 1977 No. Civ. 48838Published

Before: Fleming

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Holding. The court held that under Probate Code section 409, a beneficiary who receives more than 50 percent of an estate has the right to request the appointment of a nominee as administrator with will annexed, even if that beneficiary does not hold statutory priority under section 422. However, the court affirmed that a nonresident beneficiary is not entitled to be appointed as administrator personally, as administrators must be California residents.

Issues

Whether a beneficiary receiving more than 50 percent of an estate under a will may nominate an administrator with will annexed despite the surviving spouse's statutory priority.
Whether a nonresident beneficiary is entitled to be appointed as an administrator with will annexed in California.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“The words here plainly state that the court may appoint as administrator with will annexed a competent person not otherwise entitled to appointment as a matter of priority on written request of a resident of the United States”

“Although executors need not be California residents (see § 401), administrators must be residents. (§ 420.) In this respect it is clear the Legislature intended administrators with will annexed to be more like administrators than executors.”

Opinion

FLEMING, J.

This is a proceeding in probate for appointment of an administrator with will annexed in the estate of Robert Wanamaker, deceased. Jeff Wanamaker, deceased’s son, appeals those parts of an order which denied his petitions for appointment of himself or his nominee and granted the petition of deceased’s wife, respondent Ada Carr Wanamaker, for appointment of her nominee.

Robert Wanamaker, a Nevada resident, died in an airplane crash in November 1972. He disposed of his $2 Vi million estate in a brief holographic will:

“Pasadena, Cal.

“July 31, 1969

“I, Robert Wanamaker, declare this to be my will:

“I give $25,000.00 to my wife Ada Carr Wanamaker.

[590]

“I give all the rest, residue, and remainder (of my estate) to my son Jeff. Should he predecease the distribution of my estate, I increase the gift to Ada Carr and give her an additional $25,000.00.

“If Jeff predeceases the distribution of my estate and I leave no issue then living, I give such rest, residue, and remainder to those who would be my heirs in the event of intestacy not including however my wife Ada Carr.

Robert Wanamaker”

The will was admitted to probate in Nevada, and respondent, a Nevada resident, was appointed administratrix with will annexed.

To administer the $!/•> million portion of the estate located in California, appellant, also a Nevada resident, petitioned for probate of the will in Los Angeles Superior Court and for appointment of himself as administrator with will annexed. Appellant later petitioned in the alternative for appointment of his nominee, Fred Amesbuiy, a California resident. Respondent opposed appellant’s petitions for appointment and petitioned for appointment of her own nominee, Stanley Hahn, a California resident.

The court admitted the will to probate. On the sole ground that respondent had unqualified statutory priority over appellant, the court issued letters of administration with will annexed to respondent’s nominee.

Wanamaker v. Wanamaker

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FLEMING, J.

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