In Re the Estate of Spencer

SEAWELL, J.

This appeal was taken from an order made February 2, 1925, by the superior court of the county of Alameda, denying appellant’s motion, as public administrator of the county of Sacramento, for an order dismissing the probate proceedings in the above-entitled matter inaugurated in said county of Alameda, April 20, 1920, wherein letters of administration were regularly issued to respondent by said superior court upon the estate of the decedent, J. M. Spencer, on the thirteenth day of May, 1920. No proceedings for the administration of said estate were pending in any other court of this state. The sole ground of the motion, as stated in the notice, was that said court did not have “jurisdiction of the proceedings.” Said notice of motion constituted the first and only objection made by appellant, or by any other person, to the issuance of letters of administration to respondent and it was not made until the expiration of a period of almost five years following the day upon which said letters were issued.

The jurisdictional defects were not specifically pointed out in the notice of motion, but were attempted to be shown by the evidence taken at the hearing of the motion and were grounded upon the claim that the domicile of the decedent at the time of death was in the county of Sacramento and not in the county of Alameda, as found by the probate court of the latter county. The evidence presented

[331]

at the hearing from which the court was called upon to determine the question of the domicile or place of residence of said decedent at the time of his death, was very meager. Decedent was a native of the state of Illinois and unmarried. Despondent, Gordon A. Dise, his cousin, was his only known relative residing within this state, or elsewhere, so far as the record shows. The earliest account by anyone who knew decedent as a resident of this state commenced with-the year 1913. During that year he registered as an elector of the city of Sacramento and gave as his occupation, “carpenter,” and the city of Sacramento as his place of residence. In 1916, he registered as a resident of Natoma, county of Sacramento, and gave as his occupation “dredgman.” He became attached to the American forces in the World War sometime thereafter and received wounds or injuries while in the line of duty from which he died at Lincoln, England, in 1918. There is evidence in the record to the effect that at the time of his enlistment, or shortly prior thereto, he was residing at the city of Berkeley, California, where he kept his trunk and his personal effects. Just prior to entering the service he made his cousin, respondent, the custodian of his trunk and personal effects. Said personal property was appraised at the value of $50. He also had on deposit with a bank in the city of Sacramento approximately the sum of $300. He obtained from the government a war risk insurance policy in the sum of $10,000, which constituted by far the greater part of his estate.