Estate of Ingram

THOMPSON (IRA F.), J.

Esau A. Ingram died intestate in Los Angeles County on January 8, 1929, leaving surviving him a brother, who is the petitioner in this matter, a sister, Mary E. Thrasher, one of the respondents, who waived her claim to letters of administration, and nephews and nieces, who are the other contestants and respondents. On January 21, 1929, Joseph M. Ingram filed his petition for appointment as administrator of the estate of his deceased brother. On January 25, 1929, Charles G. Poster, one of the contestants filed a similar petition and in addition thereto all of the contestants filed opposition to the appointment of Joseph M. Ingram alleging as grounds therefor as follows: “That the said Joseph M. Ingram is more than seventy-five (75) years of age, and for some time past, and at the present time, is incompetent to transact business, and would be wholly incompetent to take charge of said estate, and to manage the same for the best interests of those interested in said estate.” The answer to the opposition denies that petitioner is incompetent either by reason of age or otherwise to serve as administrator and alleges that he is possessed of all his mental faculties and competent in every way to manage the business of the estate.' Upon those pleadings the cause was tried by the court, resulting in an order sustaining the opposition of the contestants, the appointment of Charles G. Poster, administrator, and the denial of the petition of Joseph M. Ingram. This appeal is prosecuted by the petitioner from all the orders thus made.

[662]

The principal ground relied upon by appellant is that the trial court failed to make any findings upon the issues

framed;

that without such decision there is no adjudication to support the refusal of the court to appoint the surviving brother of the deceased to administer his estate. Sections 1716 and 1717 of the Code of Civil Procedure by reference make sections 632 and 633 of the same code applicable to the trial and determination of issues of fact in probate proceedings as in ordinary civil actions. These latter sections render it necessary for the court to make its decision in writing, i. e., to sigh findings. It has been said by this court that “the right to findings is a substantial right, as inviolate, under the statute, as that of trial by jury under the Constitution. . . . ‘The right to have a material issue presented by the pleadings in a cause determined by a finding of the court is one important to the parties to a suit, and the failure to make such a finding results in prejudicial error entitling the complaining suitor to reversal.’