Li Tai Wing v. Freese

Beatty, C. J. On the 28th of February, A. d. 1894, appellant, Li Tai Wing, filed a petition in the probate court of the city and county of San Francisco, in which, with other allegations, he stated that Li Po Tai died in said city and county, March 20, 1893, testate; that by his will he nominated petitioner and his mother executor and executrix of the will; that at the time of the death of Li Po Tai, and when the will was probated, and letters testamentary were issued to his mother, petitioner was a minor, and was absent from the state of California; that his mother, Lee See, was appointed executrix April 11, 1893, and duly qualified; that afterward, on the twenty-seventh day of October, 1893, said Lee See was removed from office, and her said letters revoked; and afterward, on the fifteenth day of November, 1893, A. C. Freese, public administrator, was appointed administrator with the will annexed, to take charge of the estate, and said Freese duly qualified, and is still acting, as such administrator; that said Freese was not the husband or wife, child, father, mother, brother, or sister of said Li Po Tai, deceased.

Petitioner is the eldest son of said Li Po Tai, is over the age of twenty-one years, and a resident of the-city [487]and county of San Francisco. Wherefore, he asked that the letters of administration issued to A. 0. Freese be revoked, and letters of administration, with the will annexed, be issued to petitioner.

Freese was duly cited to appear and answer. He filed no answer, but did appear and was allowed to contest the right of the petitioner. Petitioner bases his claims, upon the language of section 1383 of the Code of Civil Procedure, and succeeding sections. He contends that under these provisions his right to the relief asked is absolute, provided only that he be found to possess the statutory competency.

The first question to be considered is this: Has section 1383 any application where the decedent has left a will? By its terms it might seem to have been intended to apply only in cases of intestacy, but in Estate of Pacheco, 23 Cal. 476, it was applied to a case in which, like the present, there was a will, and in which the other material facts were substantially the same. It is true that the question of its applicability, although argued by counsel, was not expressly adjudicated, but the decision rests upon the tacit assumption by the court that the right to administration in the case provided for is unaffected by the fact that there is a will. In itself this decision may not be of much weight as an authority, but it was made many years ago, and has never been overruled or questioned. Meantime, the legislature has revised the statute, and re-enacted this particular section in its old form, and we are bound to suppose with the intention that it should be construed now as it was construed before the revision. In my opinion there is no reason for changing its construction. If it be said that the decision in the Pacheco case disregarded the terms of the law, it maybe answered that the court was fully justified by the whole tenor of the statute and the manifest policy of the legislature, in respect to the choice of administrators, in departing from a literal construction of this particular section. By the old Probate Act—as by the corresponding sections of the code—the legislature