Mello v. Burchell

ADAMS, P. J.

Appellant, who is the half sister of Joseph

Jewel Mealy, deceased, appeals from two orders of the probate court, the one granting letters of administration with the will annexed in the estate of said decedent, to the public administrator, and the other denying a petition filed by appellant to be appointed administrator.

Decedent, who died November 26,1947, left two holographic wills, both dated January 30, 1947, one of which was found in his safe deposit box and the other in his wallet. They are approximately the same, and may be considered as one document, reading:

“January 30th 1947

“Will and Testament of Joseph J. Mealy

“I being in sound mind give that I possess to the Peoples Daily World of San Francisco Calif and nominate them executer of this Will and Testement. My half sister Marilla Mello take nothing from this Will and Testement.

“Joseph J. Mealy”

Appellant in the petition filed by her alleged that decedent left no will except the aforesaid documents, which she asserted purported to leave the estate to a corporation or association not competent to take or to act as executor; that therefore decedent died without leaving a will, and that she, as sole surviving heir of said decedent, was entitled to letters of administration.

The public administrator appeared in opposition to said petition, and filed his own petition for appointment as administrator with the will annexed, filing therewith the two wills and asking for probate of same.

The court denied appellant’s petition, granted that of the public administrator, admitted the wills to probate and found that The Peoples Daily World is a newspaper printed by the Pacific Publishing Foundation, Incorporated, a corporation,

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and that the said corporation is the sole legatee and devisee of decedent. No contest of the wills was instituted.

Appellant’s contentions are that the gift to the newspaper is void; but that, in any event, if the gift to it is sustainable at all, it constitutes a gift to charity and only one-third of the estate can go to such charity, and two-thirds must be held to descend to her, as heir; and as such heir she is entitled to letters of administration with the will annexed.