Estate of Winbigler

ANGELLOTTI, J.

According to the briefs, the only question presented on this appeal is as to the correctness of the action of the court below in appointing one Fannie S. Cake, administratrix with the will annexed of the estate of deceased, in preference to Fannie M. Reid, who was also an applicant.

The will of deceased did not name an executor, with the result that “letters of administration with the will annexed must be issued as designated and provided for in granting of letters in case of intestacy.” (Code Civ. Proc., sec. 1350a.) Appellant Fannie M. Reid is a child of a deceased brother of deceased (Ira Winbigler), and is entitled to letters under the provisions of section 1365 of the Code of Civil Procedure, in preference to respondent, a cousin of deceased, if she is ‘ entitled to succeed to” the personal estate of deceased or some portion thereof, the section expressly providing that relatives of the deceased are entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof. It is settled that in view of these provisions, an heir at law of the deceased is not as such entitled to letters of administration with the will- annexed, unless he takes under the will, i. e., of course, if the will effectually disposes of all the property of the deceased. (See

Estate of Crites,

155 Cal. 392, [101 Pac. 316], and cases there cited.)

The only question, then, is whether appellant is entitled, in view of the terms of the will, to take on distribution, any of the property of deceased. Appellant’s claim for a reversal

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is based entirely upon her contention that she is so entitled to take on distribution.

Deceased died leaving an estate of the value of sixty thousand dollars, a portion of the real property part thereof being subject to a mortgage on which is due seven thousand dollars. His holographic will was as follows:

“I George H. Winbigler of San Diego, California U. S. A. Being of Sound mind and good health make this my last

Will