Neff v. Williams

KERRIGAN, J.,

pro

tem.

This is an appeal from the order granting the petition of the public administrator of Santa Clara County for letters of administration with the will annexed in the estate of Maria C. Wyman, deceased, and is taken by one Nettie Neff, claiming to be entitled to have issued to her such letters of administration and whose petition in that behalf was denied.

Maria C. Wyman died on the fifth day of January, 1919, leaving a will dated March 31, 1900. By the terms of this will she bequeathed a small legacy to a nephew residing in Florida, and all the rest, residue, and remainder of her property to her husband, Charles F. Wyman, who was also nominated executor of the' will. Her husband, however, died on the 3d of April, 1917. By his will the bulk of his estate, which consisted of real and personal property, was devised and bequeathed to his said wife and to Nettie Neff, his daughter by a former marriage, to he shared equally between them. It is to be noted that Mrs. Wyman left no child surviving her or lineal descendant, nor brother nor sister, and that a part of her estate consists of property received by her under the terms of the will of her deceased husband. It also appears as a fact in the case that Mr. and Mrs. Wyman were first cousins.

Under these facts the question arises whether Nettie Neff, the daughter of the predeceased spouse of the decedent, is entitled to letters of administration with the will annexed upon her estate in preference to the public administrator.

The right to appointment as administrator with the will annexed follows the same order as that prescribed for the

[647]

appointment of an administrator of the estate of a person dying intestate (Code Civ. Proc., sec. 1350a), and that order we find laid down in section 1365 of that code. Therein it is provided:

“Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only whgn entitled to succeed to his personal estate or some portion thereof; and they are, respectively, entitled thereto in the following order: