Estate of Kimball

RICHARDS, J.

These appeals are from two orders, one from an order denying the application of the appellant to be appointed executor of the last will and testament of Frederick H. Kimball, deceased, and the other an appeal from an order appointing the respondents Charles F. Tully as administrator and Sarah J. Ring as administratrix, with the will annexed, of the estate of said decedent. The facts are not disputed. Frederick H. Kimball died testate in the city and county of San Francisco, leaving his last will and testament, the only portions of which presented for consideration upon these appeals are those relating to the appointment of those who were to act as executrix or executor of said will. These portions of said will read as follows: “To my dearly loved wife and little sweetheart, Charlotte Frances Kimball, I devise and bequeath all of my property real, personal and mixed of whatsoever nature not otherwise provided for in this my last will, and direct said wife Charlotte Frances Kimball to be the sole executrix of this my last will without Bonds or obligations to any one. . . . Should it please the Good Lord to call myself and little Wife at the same time, regardless of who died first, it is my wish that my property shall be equally divided between Sarah Ring, Charles H. Kimball, Harold E. Ring, S. J., Mildred Kielty, Camille Vissas, and they to carry out bequest on reverse side of this sheet, and also Bequests made in the last will of my Dearly Beloved Wife—and Sarah Ring, Charles H. Kimball and Harold E. Ring, S. J., shall be Executors without Bond.” The death of Frederick IT. Kimball occurred on September 21, 1925. Three days later, or on September 24, 1925, his wife, Charlotte Frances Kimball died; but subsequent to her husband’s death, viz., on September 22, 1925, she signed and acknowledged a document addressed to the superior court in and for the city and county of San Fran

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cisco, whereby she expressly renounced her right to act as executrix of the last will and testament of her deceased husband and appointed Charles F. Tully and Sarah J. Ring, her brother and sister, to act as administrator and administratrix, with the will annexed, of the estate of said decedent. She died two days later. Thereafter said Charles F. Tully and Sarah J. Ring filed said will for probate, together with their application to said court for the issuance of letters of administration thereon, which application, after due notice of the hearing, came on to be heard before said court on October 9, 1925, and was then heard without opposition; and at the conclusion of said hearing said will was duly admitted to probate and an order was made and entered appointing said Charles F. Tully and Sarah J. Ring administrator and administratrix, respectively, with the will annexed, of said estate; and they each thereupon duly qualified and entered upon their duties as such. On December 9, 1925, Charles H. Kimball, the appellant herein, filed his petition in said court praying for the removal of said Charles F. Tully and Sarah J. Ring as such administrator and administratrix, respectively, of said estate and the cancellation of their and each of their letters of administration and that he be appointed the executor of said will. An answer was filed to said petition and the matter came on for hearing before said court on December 17, 1925, and was then heard and submitted to said court, which, on February 5, 1926, made and entered its order denying the appellant’s petition both for the removal of said respondents and for the issuance to appellant of letters testamentary as executor of the will of said decedent. From each of the aforesaid orders the appeals herein have been taken. These appeals present the contentions of the appellant herein in two aspects. The first relates to the right of said appellant to receive the appointment of executor of said will in accordance with the terms thereof. This asserted right on his part must be predicated upon the fact, if it be a fact, that Frederick H. Kimball and his wife Charlotte Frances Kimball died “at the same time” according to the intent and meaning of the testator as expressed in his said will. But obviously this is not the fact in so far as is disclosed by the record herein. Conceivably it might have been shown that the testator had in contem