Estate of Locke

258 Cal.App.2d 617 (1968) Estate of CHARLES E. LOCKE, Deceased. S. I. BACON, Petitioner and Respondent,

v.

BALDO M. KRISTOVICH, as Public Administrator, etc., Objector and Appellant.

Civ. No. 31825. California Court of Appeals. Second Dist., Div. One.

Feb. 5, 1968. Harold W. Kennedy, County Counsel, Dixon M. Holston and Gerald F. Crump, Deputy County Counsel, for Objector and Appellant.

No appearance for Petitioner and Respondent.

LILLIE, J.

On May 15, 1966, Locke, a resident of Los Angeles County, died intestate leaving property therein. S. I. Bacon, a stranger to the estate, but the nominee of Jesse S. Locke, decedent's resident brother, filed petition for letters of administration; thereafter the Public Administrator of the County of Los Angeles filed his petition for letters alleging that the heirs at law are the two nonresident children. The trial court found that decedent left surviving him an adult daughter and son, both nonresidents, and two brothers, one a resident of Texas and Jesse S. Locke, a resident of California (Finding of Fact II), and that Jesse S. Locke had nominated S. I. Bacon to act as administrator (Finding of Fact III); and concluded that Bacon is entitled to letters of administration. From the order appointing Bacon as administrator and [619] denying the petition of the public administrator, the latter appeals.

Appellant contends that the nominee of the resident brother, who is not an heir, is subordinate to the public administrator, thus he is entitled to letters of administration.

[1] Respondent has not seen fit to submit a brief. The clerk of this court, pursuant to rule 17(b), Rules of Court, notified respondent in effect that the case would be submitted for decision on the record and on the appellant's opening brief unless respondent filed a brief. No brief has been forthcoming. Under the circumstances, we can only assume that respondent has abandoned any attempt to support the order and that the grounds urged by appellant for reversing the order are meritorious. (Mann v. Andrus, 169 Cal.App.2d 455, 458-459 [337 P.2d 473]; Moreno v. Mihelis, 207 Cal.App.2d 449, 450 [24 Cal.Rptr. 582]; Perfection Paint Products v. Johnson, 164 Cal.App.2d 739, 740 [330 P.2d 829].) [2a] Moreover, it appears, as a matter of law, that the trial court erred in granting Bacon's petition and denying that of the public administrator. Under controlling statutes Jesse is not entitled to priority as administrator, and his nominee ( 423, Prob. Code), having no greater right than he (Estate of Somerville, 12 Cal.App.2d 430, 432 [55 P.2d 597]), is subordinate to the public administrator.