Estate of Herriott

PRESTON, J.

Paul Herriott, a member of the expeditionary forces of the United States, died intestate in

[530]

France on May 2, 1918, unmarried and without issue, being at the time a resident of the county of Alameda, and leaving as his sole estate his right as a soldier under a war risk policy of insurance in the sum of ten thousand dollars, issued pursuant to the act of Congress approved September 2, 1914, and acts amendatory and supplementary thereto (title 38, U. S. 0. A., see. 514). He left surviving him a father and mother, two brothers and two sisters. The father died intestate and without estate or indebtedness on December 18, 1923. The mother died in like situation and condition on February 13, 1931. The mother had been named as beneficiary under the war risk policy and had received monthly payments thereunder until the date of her death, following which, under said act of Congress, the remainder value of the policy reverted to the estate of the deceased soldier. The value of such unpaid residue is now $4,389, and this sum admittedly belongs to the brothers and sisters of said decedent, subject to administration by the probate court, and distribution will be made to them directly upon the conclusion of the administration of said estate (see. 1023, Probate Code;

McClellan

v.

Downey,

63 Cal. 520;

Estate of Horman,

167 Cal. 473 [140 Pac. 11]).

In this state of the case a contest has arisen between the public administrator of Alameda County on the one hand and a sister of the deceased soldier on the other, for letters of administration. The petition of the sister, Anna Grace Plerriott, was filed on May 8, 1931; that of the public administrator on May 19, 1931. The court below, on December 30, 1931, awarded letters of administration to the sister and denied the petition of the public administrator, who has now appealed.

The right to letters is statutory and is determined by proper interpretation of section 422 of the Probate Code (formerly section 1365 of the Code of Civil Procedure), which in this behalf reads as follows: “Administration of the estate of a person dying intestate must be granted to one or more of the following persons, who are entitled to letters in the following order, the relatives of the decedent being entitled to priority only when they are entitled to