In re Carr (1864) · DecisionDepot

In re Carr

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1864Published

Before: Sawyer

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Holding. The court held that parties entitled to request the revocation of letters of administration under the Act may only do so to have letters issued to themselves, not to third parties who otherwise lack a statutory right to administer the estate.

Issues

Whether parties entitled to request the revocation of letters of administration have an absolute right to have letters issued to their chosen nominees who are otherwise ineligible.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The only parties who are authorized to obtain the revocation under that section are the wife, child, father, mother or brother of the intestate, and such persons are only authorized to have the letters revoked by presenting a petition”

“We think no such unqualified right to have the letters revoked and appellants appointed, as claimed by appellants, exists.”

Synopsis

Administrators.—The right of persons entitled to administer on an estate to have, upon their written request, letters of administration granted to persons not entitled to administer, only exists where there is a vacancy in the administration.

Same.—Where notice in the manner prescribed by law has been given of an application for letters of administration, and upon the hearing no opposition is made, and letters are issued to the applicant, who is not within the degrees of consanguinity mentioned in the sixty-seventh section of the Act to regulate the settlement of the estates of deceased persons, the only parties who cait, obtain a revocation of the letters as an absolute, unqualified right, are, the wife, child, father, mother, or brother, of the intestate, and they are only authorized to have the letters revoked by presenting a petition praying the revocation, and that letters may be issued to him or her.

By the Court, Sawyer, J. Michael Carr died intestate in the County of Sacramento, leaving a sister, Dorothy Bolton, wife of George Bolton, residents of Sacramento County; a brother, Mark Carr, a resident [586]of Sonoma County, and several married sisters in England, but no other relations in the State of California.

George Bolton, husband of said Dorothy Bolton, and F. McComber, Public Administrator of Sacramento County, each applied for letters of administration. Upon a hearing on the several petitions, it was ordered that letters issue to George Bolton. George Bolton afterwards, as appears by the findings, “came into Court and declared himself unable to procure the requisite sureties, waived his right to administer, and consented that letters of administration should be granted to said McComber.” Thereupon letters were issued to McComber, who qualified and entered upon his duties as administrator. After-wards said Mark Carr, brother of deceased, filed a petition praying that the letters granted to McComber be revoked, and the administration granted to him. Upon the hearing, the prayer of the petitioner was denied on the ground that he was not entitled to letters under the fifty-fifth section of the Act relating to estates of deceased persons, for want of integrity. John Bennett and Stephen Addison then filed a petition praying a revocation of the letters granted to McComber, and the issue of letters to themselves, which petition was accompanied by a written request to the same effect, signed by said Bolton and wife, and Mark Carr. The prayer was denied, and from the order denying the petition this appeal is taken.

There is no question as to the entire fitness of both McComber and the appellants to discharge the duties of the trust. . The only question is, as to the absolute, unqualified right of Mark Carr and Bolton and wife, on their written request, to have the letters issued to McComber revoked, and other parties of their selection, not otherwise entitled, appointed. This right is claimed by the appellants under the sixty-sixth and sixty-seventh sections of the Act. We think section sixty-six refers to cases where there is a vacancy in the administration. The Public Administrator is one of the persons entitled to -letters. There are others entitled to. preference. In this case ■a petition was filed by Bolton, the husband of the sister of the deceased, in light of his wife, and by McComber at the same [587]

In re Carr

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