Eulert v. Pennie

Belcher, C. C. James Allen, a resident of the city and county of San Francisco, died in the month of October, 1887, leaving a will which was admitted to probate in December of that year. Margaret Allen, the widow of deceased, was appointed executrix of the will, and duly qualified as such.

On the second day of April, 1888, Mrs. Allen married one John F. Von Muegge, and has ever since been his wife. Four days later,—on the 6th of April,—Freder7 iclc Eulert filed in court a petition asking to be appointed administrator of the estate of deceased with the will annexed, and with his petition he also filed a paper, subscribed by Margaret Von Muegge, which reads as follows:—

“ Superior court, San Francisco, department 9.

“In the matter of the estate of James Allen, deceased.

“I, the undersigned, surviving wife of the above-named deceased, hereby request Dr. Frederick Eulert to accept [583]the office of administrator with the will annexed of said deceased, to serve in my place and stead, as I became the wife of John F. Von Muegge on the 2d of April, 1888, and am no longer authorized to be or act as executrix of the last will and testament of said deceased, and I hereby request the above-named court to appoint said Eulert as administrator with the will annexed.”

On the 20th of April, William Allen, the eldest son of deceased, filed a petition, asking that letters of administration on the estate be issued to him, and on the same day, upon his motion, James 0. Pennie, the public administrator of the city and county of San Francisco, was appointed special administrator of the estate, “ whereupon,” as stated in the bill of exceptions, “ said Eulert and Margaret Von Muegge excepted.”

On the 3d of May, William Allen renounced his right to letters and nominated Pennie for the office, and thereupon on the same day Pennie filed his petition, asking to be appointed administrator of the estate with the will annexed.

Hotices of the several applications were posted as required by law, but no citation to show cause why her letters testamentary should not be revoked was ever issued or served upon Mrs. Von Muegge, nor did she ever consent to any revocation thereof, or resign her office as executrix, except as hereinbefore stated.

When the applications came on to be heard, the court denied the petition of Eulert and granted that of Pennie, and letters were issued to him on the 29th of May, 1888. From this last order- Eulert and Mrs. Von Muegge have appealed.