Bronner v. Jahant

Searls, C.— This is an appeal from a judgment of the superior court of Sacramento county, in probate, denying the petition of the appellant, as public administrator, for letters of administration, and granting the petition of Victor J ah ant for the probate of the last will, and granting letters testamentary to him, the said Victor Jahant, as executor of the last will of Richard Hick.mau, deceased.

Richard Hickman died on or about May 5, 1893, at the county of Sacramento, leaving what purported to be a last will, by which he devised and bequeathed all of [612]his estate, real and personal, to his wife, Elizabeth Hickman, subject to the payment of his debts, and appointed Victor Jahant as the executor of such will, to serve without bonds.

Jahant, the executor named, filed a petition for the probate of the will, showing, among other things, estate, real and personal, in the county of Sacramento; that Elizabeth Hickman, the wife, had died; that there were no heirs in Sacramento county; that the next of kin, who are heirs, and their residence was unknown, etc.

Appellant, who is the public administrator of the county of Sacramento, filed a contest of the probate of the will, setting out, among other things, and as evidence of his right to make such contest: 1. That he was a public administrator; 2. That the sole legatee and devisee under the will, who was the wife of testator and not a relative, had died during the lifetime of the testator, whereby the devise and legacy lapsed, and the will became null and void.

He also filed a petition praying to be appointed administrator of the estate. A demurrer was interposed to his contest, which was sustained by the court.

The two applications were heard together, and, upon due proof of the execution of the will, it was admitted to probate, Victor Jahant appointed executor under the will, and the application of appellant, as public administrator, to be appointed administrator was denied.

The demurrer was properly sustained. Appellant, as public administrator, had no standing in court to contest the proof of the will. He was not interested in the sense of having an interest in the estate within the purview of sections 3307-12 of the Code of Civil Procedure.

In re Sanborn’s Estate, 98 Cal. 103, McFarland, J., said: “ If a public administrator could legally assume the character of a standing contestant of wills, notwithstanding the wishes of heirs and devisees, he would certainly enlarge the sphere of his activities; but the limitations of the statute do not allow such inflation.”