Grover v. Van Leeuwen

California Court of Appeal May 23, 1960 No. Civ. 18945Published

Before: Kaufman

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Holding. The court held that the right of a surviving spouse's nominee to be appointed as administrator with the will annexed is a power not coupled with an interest, which terminates upon the death of the nominating spouse before the appointment is made. Consequently, the appeal regarding the denial of such an appointment becomes moot upon the death of the nominor.

Issues

Whether the right of a surviving spouse's nominees to be appointed as administrators becomes fixed during the spouse's lifetime or terminates upon her death.
Whether the nominees of a surviving spouse have an absolute right to appointment under sections 409 and 422 of the Probate Code.
Whether the widow's pending litigation against the estate's beneficiaries disqualified her nominees from serving as administrators.

Disposition. dismissed

Quotations verified verbatim against the opinion

“The power granted by the widow died with her.”

“The nominees’ right had not ripened by their appointment, and thus does not survive, the appeal has become moot.”

“The highly preferential position accorded to the surviving spouse is only for her benefit; persons outside the family cannot assert it by assignment.”

KAUFMAN, P. J.

This is an appeal from an order appointing the decedent’s daughter, Eleanor Van Leeuwen, the respondent herein, as administratrix with the will annexed of

[175]

the estate of Ziba L. Henry, and denying the petition of Harry N. Grover and Thomas F. Casey (two of the appellants herein), who were the nominees of the decedent’s widow, Mathilda M. Henry.

The facts are not in dispute. Ziba L. Henry executed a last will and testament on April 11, 1955. He died on October 16, 1955. The will was admitted to probate on November 28, 1955, and Prank B. Henry (a son of the deceased), who was nominated therein, duly qualified as executor and proceeded to carry out his task. The will named the widow as the recipient of the household effects. The remainder of the estate was bequeathed in five parcels to the widow and the four children of the testator. [The record on appeal has been augmented to include a copy of the will.]

On June 13, 1956, the widow filed her complaint for cancellation of waiver and establishment of a constructive trust, naming as defendants Prank B. Henry, as executor, and all the sons, daughter and grandchildren of the decedent to set aside an agreement

entered into between her and deceased, by which the property of the parties was to be shared by the widow, the sons, the daughter and the grandchildren. The trial of this matter was begun in October, 1958, and is now on a separate appeal before this court

(Henry

Henry,

No. 18975).

Prank B. Henry died February 28, 1959, before the administration of the estate of Ziba L. Henry had been completed. On March 11, 1959, the respondent filed her petition for letters of administration c.t.a. On March 18, 1959, the widow filed her petition nominating Harry N. Grover and Thomas P. Casey as joint administrators c.t.a. Both petitions were heard on May 7,1959, and the court entered its order in favor of the respondent on its finding of facts as follows: (1) that the widow’s suit against the other devisees was still pending;

Grover v. Van Leeuwen

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KAUFMAN, P. J.

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