Randall v. Philbrook

WILBUR, J.

This is an appeal from an order of the superior court revoking letters of administration with the will annexed issued to the appellant, Florence E. Philhrook, a sister of the decedent, and appointing as executrix Anne Bates Randall, widow of said decedent, named in the will as executrix thereof. Decedent at th'e time of his death, November 18, 1914, was a resident of the state of Maine, residing there with his wife, the respondent herein. Upon his death his will was there offered by his widow for probate, and was on January 22, 1915, admitted to probate in Cumberland County, Maine. On February 3, 1915, the appellant, Florence E. Philhrook, filed a petition for the probate of said will as a foreign will and for her appointment as administratrix with the will annexed. This order was made on the fifteenth day of February, 1915, and is the appointment revoked by the order appealed- from. Subsequently the widow came to California, and on March 15, 1917, applied for the revocation of said letters to appellant and for her own appointment as executrix. Notice of the hearing of said application was given by personal service of citation upon the appellant and by posting and publication of such notice. Appellant appeared and answered said petition, and after trial thereon the order appealed from was made.

[365]

The code provides, “Where a person absent from the state . . . is named executor ... If there is no other executor, letters of administration, with the will annexed, must be granted; but the court may, in its discretion, revoke them on the return of the absent executor ...” (Code Civ. Proc., sec. 1354.) The - respondent had an absolute right to the revocation of appellant’s letters and to the issuance to her of letters of administration, with the will' annexed, without regard to the question of whether or not she was named as executrix in the will as against the appellant. (Code Civ. Proc., secs. 1383-1386;

In re Li Po Tai,

108 Cal. 484, [41 Pac. 486].) In such a case where the substantive right to administer the estate is absolute, and the only substantial difference between letters testamentary and of administration with the will annexed is the matter of the giving of bonds (the will waiving bonds), and where a bond may be required by the court in its discretion in that case, it would be an abuse of discretion to refuse, rather than an abuse of discretion to grant, such letters testamentary. Appellant, however, claims that the respondent widow had renounced her right to letters testamentary by a failure for thirty days “to petition the proper court for the probate of the will, and that letters testamentary be issued to” her, under section 1301 of the Code of Civil Procedure, which provides that an executor who has knowledge of a will and that he is named therein as executor, who fails for thirty days thereafter to petition the proper court for the probate of the will and that letters testamentary be issued to him, “he may be held to have renounced his right to letters, and the court may appoint any other competent person administrator, unless good cause for the delay is shown.” It is contended that “may,” as used in this section, should be construed as “must.” But it is evident that this section must be construed in connection with section 1354 of the Code of Civil Procedure, above quoted. Where the executor is “absent from the state” and returns, the court “may revoke” letters previously issued, and so construed the question of the appointment of the returning executor is discretionary with the trial court. It is also apparent that the “renunciation” referred to in section 1301,