Estate of Wakefield

GAROUTTE, J.

This is a contest for letters of administration upon the estate of Naomi Wakefield, deceased, arising between the public administrator, and Ruth Miller the nominee of the brothers of the deceased. Naomi Wakefield and her mother, Sarah W. Wakefield, lost their lives in the wreck of the steamer Rio Janeiro in the harbor of San Francisco. Naomi Wakefield died first. Both of them left estates in the county of Alameda. Naomi died intestate, and at the time of her death her mother was her sole heir at law and the person entitled to succeed to her personal estate. Naomi left surviving her two brothers; and the mother, Sarah, left a last will and testament, in which she bequeathed her property to her said two sons. These two sons requested the court to

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appoint Ruth Miller, the appellant herein, administratrix of the estate of Naomi. The public administrator also applied for letters of administration upon her estate, and the question now presented is, Who is entitled to administer under the above state of facts ?

Section 1365 of the Code of Civil Procedure provides: “Administration of the estate of a person dying intestate must be granted to one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof; and they are, respectively, entitled thereto in the following order: 1. The surviving husband or wife; ... 4. The brothers; ... 7. The next of kin entitled to share in the distribution of the estate; 8. The public administrator.”

If the brothers are entitled to letters, then their nominee, Ruth Miller, is equally entitled to letters; and the brothers are entitled to letters if they are entitled to succeed to Naomi’s personal estate, or some portion thereof. At the moment of Naomi’s death her entire estate passed to her mother, as her sole heir at law, subject to administration. And if the brothers were not heirs at law of Naomi, the sister, at the moment of her death, no subsequent change of conditions could ever alter their

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in that particular. Now, the statute says that they must not only be brothers of deceased, but that they must be entitled to succeed to her personal estate. Appellant’s counsel make the point that the measure furnished by the statute is filled if these brothers are entitled to her estate at the time the application for letters is filed. This claim, if legally sound, does not fortify their position. For they were not entitled to succeed to her estate when Ruth Miller’s application for letters was filed. The mother succeeded to Naomi’s estate at the moment of her death, subject to administration. If the mother succeeded to the estate of her daughter, it is impossible that the brothers could thereafter succeed to it. After Naomi’s death the mother could have disposed of the daughter’s estate by deed or assignment. She did dispose of it by will. The fact that the will was probably made before the daughter’s death, rather than subsequent thereto, is not material. If the mother had died intestate, even then these brothers would not have