Estate of Wooten (1880) · DecisionDepot

Estate of Wooten

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

California Supreme Court Jul 1, 1880 No. No. 6,790Published

Before: McKee

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Holding. The court held that a guardian of a minor child may assert a prior right to letters of administration against an administrator appointed by virtue of a secondary right, and that the administrator's 'grounds of opposition' to such a petition do not require a replication.

Issues

Whether the administrator was entitled to judgment on the pleadings for the petitioner's failure to answer his 'grounds of opposition.'
Whether the court erred in failing to make a finding on an allegation of maladministration that was unsupported by evidence.
Whether the guardian of a minor child may have letters of administration revoked to assert a prior right to administer the estate.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The Court below has found all the facts necessary to entitle the plaintiff to administer upon the estate, and to a revocation of the letters of administration formerly granted to the defendant”

Synopsis

Appeal from an order revoking letters of administration and the appointment of an administrator, and from an order denying a new trial, in the Probate Court of the County of Stanislaus. Stone, J.

The facts are stated in the opinion. After the decision in Department, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied.

McKee, J.: On the 3rd day of July, 1881, Isaac M. Wooten, a resident of Stanislaus County, died intestate in that county, leaving an estate therein. There survived him, as heirs to his estate, a widow and one child, Hiram Wooten; and also two brothers, one of the whole-blood and another of the half-blood—all resi[324]dents of the county. Letters of administration of his estate were granted to the widow, who afterwards married, and subsequently died. On the 12th day of April, 1879, Stephen C. Wooten, the brother of the half-blood, was, by consent of the brother of the whole-blood, appointed administrator de bonis non of the estate. He qualified, and continued to act in that capacity until the 18th of August, 1879, when the Probate Court of the county revoked his letters of administration, and granted letters to Sarah A. Adams, the guardian of Hiram Wooten, the minor child of deceased.

After the order of revocation, a motion was made for a new trial, which was denied; and from the order denying a new trial, and the order of revocation, the administrator de bonis non appeals, and assigns as error, that, on the trial of the issues made by the pleadings in the proceedings against him, the Court below erred:

1. In denying a motion made by him for judgment on the pleadings.

2. In failing to find upon issues made by the pleadings.

3. In ordering a revocation of his letters of administration.

The proceedings for the revocation of the letters granting to

the administrator de bonis non were commenced by petition filed by Sarah A. Adams, as guardian of the minor child of the deceased.

Upon being served with citation, the administrator appeared, and, assuming the position of a contestant, filed what he called objections or grounds of opposition to the petition. When the matter came on for hearing, upon a day fixed for that purpose, the petitioner had not made or filed any demurrer or answer to these objections, and the administrator moved for judgment upon the pleadings, but this motion was denied.

In support of his right to judgment for want of a demurrer or answer, he relies upon Fitzgibbons v. Calvert, 39 Cal. 261; Felch v. Beaudry, 40 id. 443; Gay v. Winter, 34 id. 160; and §§ 1312 to 1318 of the Code of Civil Procedure.

Estate of Wooten

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