Abrahams v. Hosselkus
Before: Henshaw
Synopsis
Estates of Deceased Persons—Contest for Letters—“Person-Interested”—Public Administrator.—A public administrator, who asserts a right to administer the estate of a deceased person under section 1365 of the Code of Civil Procedure, is a “person interested’ in a contest for letters of administration, within the meaning of section 1374 of that code, and may appear and contest the appointment of another petitioner.
Id.—Construction of Code—Nomination by Nephews and Nieces —Discretion—Appeal.—The nephews and nieces of the decedent have not the absolute right of nomination and revocation of letters secured to the first five classes enumerated in sections 1365 and 1383 of the Code of Civil Procedure, but the rights of their nominee are secured only by section 1379 of that code, under which his appointment by the court is discretionary; and the exercise of its discretion to refuse such appointment and to appoint the public administrator, who is next entitled, on the ground that it is for the best interest of the estate, will not be disturbed upon appeal, if no abuse of discretion is made to appear in the record.
Id—Legislative Adoption ' of Construed Statute—Vacancy in Administration.—Section 1379 of the Code of Civil Procedure, relative to appointments of nominees of persons entitled to administer, being a re-enactment of section 66 of the former practice act, which was construed to apply only in cases where there was a vacancy in the administration, it seems should be considered as a legislative adoption of the known construction of the latter section.
HENSHAW, J. This is the appeal of L. Abrahams from the order denying his petition for letters of administration upon the estate of Matthew Healy, deceased, and granting letters to another petitioner, J. W. Hosselkus, public administrator.
[163]The only relations of the deceased living in California are Ulty and James McCabe and their married sister, all children of a deceased sister of the intestate. Ulty and James, being of lawful age, and of the next of kin, were entitled to letters as belonging to the seventh class enumerated in section 1365 of the Code of Civil Procedure. They did not themselves apply for letters, however, but nominated and requested the appointment of Abrahams, the appellant herein. He petitioned as their nominee. Thereafter Hosselkus entered a contest to Abraham’s petition, and at the same time filed a petition of his own asking for letters. The McCabes in turn contested the petition of Hosselkus. The petitions and contests were heard together. Abrahams moved the dismissal of Hosselkus’ contest, upon the ground that he was not a party interested within the meaning of section 1374 of the Code of Civil Procedure, and the motion was denied. The outcome of the hearing was the order appealed from.
The public administrator is the eighth in order of the persons and classes of persons entitled to letters of administration under section 1365 of the Code of Civil Procedure, and he is “a person interested” within the meaning of section 1374 of the same code. The language of the latter section indicates that the interest mentioned therein is an interest not alone in the estate, but as well an interest in the question, Whose is the right to letters of administration upon the estate? Anyone asserting a right to administer may appear in such a contest. This is a different interest from that which is contemplated in section 1307 of the Code of Civil Procedure, concerning contests over wills. There, obviously, the interest is an interest in the estate, either as heir at law, legatee or devisee. In such a contest, of course, the public administrator is not a party interested. (In re Hickman, 101 Cal. 609.)
Though the question has never been directly presented for adjudication, it has always impliedly been held in accordance with the foregoing view. Thus, in Estate of Muersing, 103 Cal. 585, the nominee of the nonresident father was allowed to contest the application of the public administrator for letters. Assuredly, the nominee of the nonresident father is not a person interested in the estate. In Estate of Connors, 110 Cal. 408, the public administrator unsuccessfully contested the application of the
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