In re Brown

Belcher, C. C. Emeline V. Brown died on the 16th of February, 1888, and at the time of her death was a resident of the city of Philadelphia, in the state of Pennsylvania. She left real property situate in the city of Sacramento, in this state, of the value of about fifteen thousand dollars. She left a duly executed will, disposing of all her property to certain legatees, who were non-residents of this state. In her will George A. West was named as sole executor. The will was duly admitted to probate on the 21st of February, 1888, in the orphans’ court of Philadelphia, and letters testamentary were issued to said West. On the 6th of October, 1888, a copy of the will and the probate thereof duly authenticated was filed in the superior court of the county of Sacramento, and E. A. Burr, a resident of that county, filed a petition asking that letters of administration with the will annexed be issued to him. Subsequently, S. B. Smith, the public administrator of the county, filed his petition that letters of administration upon the estate with the will annexed be issued to him. And thereafter George A. West, named in the will as executor thereof, filed his petition, stating that he desired to act as executor of the will in the state of California, and asking that letters testamentary be issued to him. The petitions were heard together, and an order was made admitting the will to probate, and directing the issuance of letters of administration with the will annexed to S. B. Smith, the public administrator. The petition of West was denied, because of his being a non-resident of the state. The finding on that point is as follows: —

"The petitioner, George A. West, was at all the times named in his petition and now is a resident of the state of Pennsylvania, and is not now in the state of California, but is absent therefrom, and has not been therein at any time pending said proceedings.”

And from the facts found the court concluded the law to be “that said George A. West is not eligible to [383]appointment as executor of said will in this state, and has no authority to nominate an administrator of said estate, and his petition in that regard should be denied.”

In due time West moved the court to set aside the order denying his petition and granting that of Smith, and for a new trial, on the ground that the decision was not justified by the evidence. The motion was made on a brief statement of the case, and one óf the specifications therein was as follows: —