Estate of Warner

SLOSS, J.

Adam Warner having died intestate, a contest over the right to act as administrator of his estate arose between Katie Warner, his widow, and Adam J. Warner, his son. The superior court made an order granting letters of administration to the son, and the widow appeals from the order, and from an order denying her motion for a new trial.

Where the surviving wife is entitled to succeed to some portion of the personal estate, she has a preferential right to letters. (Code Civ. Proc., sec. 1365.) The right of the widow in this case was disputed on the ground that she had, by an ante-nuptial agreement, surrendered her right of succession to any part of Adam Warner’s estate. The agreement in question was in writing. .It provided that, in consideration of the covenants to be performed on the part of the appellant (then Mrs. Heidt) Warner agreed to care for, keep, maintain, and support her and her minor child, and to properly educate said child, so long as the said appellant should be a good, faithful, and dutiful wife to him, and also tó pay her one hundred dollars per annum, and that, at his death she should “receive from his estate, without any administration, the sum of one thousand dollars.” Each of the parties relinquished any and all claims to the property of the other, either, as heir or otherwise.

This agreement was set up by the son in his own petition for letters, and also in his contest to the widow’s petition. In both • of these pleadings he averred the full performance of the terms of the agreement by Adam Warner. The widow filed an answer to the contest, and in this she denied the allegation of performance and alleged more specifically, that Adam Warner had failed and refused to support or educate her minor child, and had failed to provide the sum of one thousand dollars to be paid to her at his death. She also set up that the agreement was, as the result of fraud or misrepresentation on the part of Adam Warner, so drawn as not to express her intention, and that the consideration was inadequate as to her.

The findings were in favor of the respondent on all these issues. So far as the charges of fraud and inadequacy of consideration are concerned, the findings are clearly sustained by the evidence. Even if we adopt the appellant’s view that the contracting parties occupied such a relation to each other as to

[444]