In re the Estate of Pina

Van Fleet, J. The deceased died testate in the county of Sonoma, leaving estate therein. His will was duly admitted to probate, and letters testamentary issued to the person named therein as executor. Subsequently the executor resigned his trust without having closed the administration of the estate, and thereafter, in 1891, [15]an administrator with the will annexed was appointed and qualified.

In March, 1895, while the administration was still incomplete, the bondsmen of the administrator withdrew from his bond, and on the 26th of that month his letters were revoked for failure to file a new bond. Thereupon, in April, 1895, the appellant, Carrillo, claiming as the nominee of the next of kin entitled to administer, applied to be appointed administrator of the estate. His application was contested by the public administrator, who asked that letters be issued to himself. Certain other parties seem to have opposed the appointment of any administrator of the estate, but upon what ground or with what right does not clearly appear.

At the hearing there was evidence tending to show' that there was property of said estate—an interest in certain real property coming to deceased under a patent from the United States government—which had not been administered, and that the administration of the estate had never been concluded, by decree of distribution or otherwise. Notwithstanding this showing, the court below denied and dismissed the petition of said Carrillo, and also that of the public administrator, upon the ground, as stated in its order, that it appeared that there were no creditors of said estate and no property thereof, and hence no necessity for an administrator. From this order Carrillo appeals.

We think the action of the lower court was justified by neither the facts nor the law. There was no evidence whatever to sustain the finding, if it may be so regarded, recited in the order that there was no property of the estate. The evidence clearly tended to establish the existence of property of the estate; and that it had ever been fully administered was not even pretended.

The court seems to have acted largely upon some general statements that the heirs of the deceased had parted with their interest in the property of the estate; but not only was there no competent evidence of that [16]