In Re Estate of Harrison

HENSHAW, J.

Deceased died in the state of Virginia, leaving a last will and testament, which was admitted to probate in that state, and letters testamentary thereon were issued to one A. B. Bevan, named in the will as executor thereof. An authenticated copy of the will was filed in the superior court of the city and county of San Francisco, where the

[8]

deceased left estate, and Henry P. Umbsen petitioned for letters of administration with the will annexed, the foreign executor joining in the petition and requesting .the nomination of Umbsen. P. Boland, the public administrator of the city and county of San Francisco, filed his opposition and his petition that he himself be appointed. The opposition and the petitions were heard together, and the court made its order admitting the will to probate and appointing Umbsen administrator of the estate with the will annexed. The public administrator appeals.

In appealing he insists that no discretion was vested in the court, and that as matter of strict legal right he was entitled to letters. The

Estate of Richardson,

120 Cal. 344, contains one of the last expressions of the court upon this question. There, as here, a person not interested in the estate petitioned for letters of administration with the will annexed, the foreign executor joining in his petition and requesting his appointment. A devisee under the will, resident in California, likewise requested the nomination of the petitioner. The public administrator also petitioned, and the court ordered letters to be issued to the public administrator. This court said: “The executor, although a non-resident of the state, could have made application for the issuance of letters testamentary to himself

(Estate of Brown,

80 Cal. 381), but there is no provision in the statute giving him the right to nominate an administrator with the will annexed.

(Estate of Beech,

63 Cal. 458.) . . . The provision of section 1379 of the Code of Civil Procedure, ‘Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court,’ does not require the court to appoint the nominee of the person entitled, as it is required to do under section 1365, in case of the nominee of the surviving husband or wife, but places the appointment in the discretion of the court.” The court in that case, having exercised its discretion by appointing the public administrator, the appellate court did not disturb its determination. In