Sheldon v. Superior Court

McCOMB, J.

This is an application for a writ of review of an order of respondent court removing a special administrator and appointing another in his place and stead. Respondents have entered (1) a general demurrer, (2) a special demurrer on the ground that Marie Babb is not a proper party respondent in the present proceeding, and (3) a motion to quash or modify the writ of review.

The essential facts are:

July 25, 1940, Judge Desmond made an order appointing petitioner, a legatee in decedent’s will, special administrator of the estate of Lena L. Stokes. After due notice respondent Marie Babb, a sister of decedent, on September 13,1940, sought to have petitioner removed as special administrator of said decedent’s estate and herself appointed as special administratrix of the estate, on the sole ground that she had the prior right to act as special administratrix.

It was stipulated by the parties that the question presented for the decision of the probate court was its jurisdiction to remove a special administrator theretofore appointed, for the single reason that another might have a prior right to be appointed such special administrator. The matter was heard before George A. Hart, Sr., sitting as a judge

pro tem.

Said judge

pro tem.

made an order removing petitioner as

[408]

special administrator and appointing Marie Babb as special administratrix of decedent’s estate.

This is the sole question presented for determination:

Does the probate court have power to remove without a showing of cause therefor a special administrator who has been appointed ex parte?

This question must be answered in the negative. The law is established in California that a valid order made

ex parte

may be vacated only after a showing of cause for the making of the latter order, that is, that in the making of the original order there was (1) inadvertence, (2) mistake, or (3) fraud (Klokke