Nielsen v. Neergaard

KINGSLEY, J.

John S. Nielsen died intestate at Denver, Colorado, on September 13, 1960, leaving surviving him his widow (appellant herein), one brother and two sisters (who are the respondents on this appeal). The widow petitioned for letters of administration, alleging that, at- the time of his death, decedent was a resident of Los Angeles County, California. On December 5, 1960, by an order reciting decedent ’s Los Angeles residence, letters were duly issued to her, and she qualified as such administratrix. No appeal or other attack was made upon this order by anyone, and it has long since become final.

On November 16, 1961, the administratrix filed her first and final account and petition for discharge of administratrix. She there alleged, for the first time and contrary to the allegations of her petition for letters of administration that, at the time of his death, the decedent was a resident of Colorado; there was no real property of the estate in California; all of the personal property listed in the inventory had been removed from California to Colorado, and was being administered in the State of Colorado; and sought discharge on the ground that there is no estate to be administered in California. The brother and sisters of decedent filed objections to the petition, claiming that, because the decedent was adjudicated to be a resident of California by the order appointing administratrix on December 5, 1960, his estate must be accounted for and distributed in this proceeding and under the laws of California.

They also filed a petition for decree determining interests in the estate. After a hearing, the trial court sustained the objections, refused approval to the first and final

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account, and entered a decree determining heirship in accordance with section 223 of the Probate Code—i.e., one-half to the widow and one-sixth each to the brother and sisters. The widow, both as administratrix and in her individual capacity, has appealed from both orders.

The primary issue involves the rights of the widow and the brother and sisters to share in the estate, since, if decedent can now be treated as having been a resident of Colorado at the time of his death, the laws of that state would give the entire estate to the widow. If this were all, the appeal by the administratrix in her representative capacity would be unauthorized and should be dismissed. (3 Within, California Procedure, p. 2183.) However the appeal also involves the settlement of the account of the administratrix and her discharge. Prom such an order, she may appeal in her capacity as administratrix.