Randolph v. Collison

[441]

WASTE, C. J.

Motion to dismiss. Claiming to be the surviving husband of May Wheeler Randolph, deceased, the appellant filed a petition in the court below nominating and requesting the appointment of the Bank of Italy National Trust & Savings Association as administrator of her estate. The bank filed its petition requesting the issuance of letters to it as such nominee. Respondent, a daughter of the decedent, filed written objections to each of the petitions, alleging, in substance, that appellant was not legally married to the decedent at the time of her demise, and was not, therefore, in a position to nominate anyone to serve as administrator of the estate. In addition, respondent requested that she be appointed administratrix of her mother’s estate. She also filed a petition requesting the probate of what is alleged to be the decedent’s last will and testament and asking the appointment of an executor. These several petitions were heard together. Upon the conclusion of the evidence, the court found, among other things, that the purported marriage between decedent and appellant was illegal and void, for which reason he was not the surviving husband of the decedent and therefore was not in a position to serve as or to nominate anyone to serve as administrator of her estate; and that upon making the necessary proof respondent was entitled to have the will admitted to probate, and to be appointed administratrix of the estate. A decree in substantially the same language was accordingly entered on April 23, 1930. Appellant filed his intention to move for new trial on May 7, 1930, which was within ten days after service of notice of entry of judgment. Thereafter respondent moved to strike the motion for new trial from the files on the ground that such a motion was not available to appellant. No disposition was ever made of the motion to strike, but on June 27, 1930, the motion for new trial was' denied. Thereupon, and on July 7, 1930, appellant filed his notice of appeal from the decree and each and every part thereof. It is thus apparent that the appeal was taken more than sixty days after the entry of the decree, and is, therefore, too late (sec. 1715, Code Civ. Proc.), unless the proceedings for new trial served to extend the time therefor. (Secs. 1714 and 939, Code Civ. Proc.)

[442]