In Re Estate of Munroe

[11]

MELVIN, J.

This is an appeal by Ella J. Gates from an order whereby the superior court refused to appoint her executrix of the last will and testament of B. L. A. Munroe, deceased. Both Gates and the public administrator petitioned for letters and the latter was granted letters of administration.

Munroe died testate, devising a part of his real property and bequeathing all of his personal property to said Ella J. Gates. The will did not in terms mention an executrix, but the last sentence contained the words “Said Ella J. Gates to be without bonds.” The will was admitted to probate, and the court ruled that the testator intended to nominate the woman as executrix without bonds. Thereupon the public administrator, P. J. Layne, presented objections and written opposition to the issuance of letters to her on the grounds of her incompetency by reason of her drunkeness and her want of integrity. The court found that she was not incompetent by reason of drunkenness, but that her want of integrity was established, and this latter ruling is the one against which appellant’s counsel directs his principal attack.

George Pringle, a police officer, testified that he had known Ella Gates for fifteen years; that during the five or six years preceding the time of his testifying he had frequently seen her in saloons drinking; that she, a negress, had for a time lived in a saloon with a white man in the lower part of the city of San Diego; and that every time she got drunk she would hire a horse and buggy and would drive furiously through the streets. Another policeman testified that Ella Gates had lived with different negroes and that at one time she resided with a white man. There was other testimony given by the mother of Ella Gates and by one Wright, who lived on the lower floor of the house in which she occupied a room on the upper floor, tending to show that she was at chat time living with a man named Ramsey, who was not her husband. William H. Wetherbee, a police officer, testified that some years before the hearing Ella Gates had been arrested three times for vagrancy. Some of this testimony was contradicted by witnesses called on behalf of appellant, but we must here not weigh conflicting evidence, but determine whether or not that given on behalf of the respondent is sufficient to support the finding of want of integrity in Ella Gates. Undoubtedly mere immorality is not sufficient to justify a court’s refusal