Adams v. Sharp

McCOMB, J. This is a petition for a writ of mandamus to require respondent, as Clerk of the Superior Court of Los Angeles County, to comply with an order of such superior court to accept letters testamentary bearing the oath of office of petitioner taken before a notary public in the State of Indiana.

Facts: Petitioner is a nonresident of the State of California and absent therefrom. On February 10, 1964, she, through her attorney of record, petitioned the Superior Court of Los Angeles County in a proceeding entitled “In the Matter of the Estate of Grace Funderburg, also known as Grace V. Funderburg, Deceased, ’ ’ in which she alleged that said Grace Funderburg died on July 24, 1962, while a resident of the County of Wabash, State of Indiana, and that said decedent left property in the County of Los Angeles, State of California, and asked that the decedent’s will be admitted to probate by the Superior Court of Los Angeles County and that she be appointed executrix thereof.

On February 28, 1964, the superior court made its order admitting the will to probate and appointing petitioner as executrix thereof upon giving a bond in the sum of $3,000 corporate or $6,000 personal sureties.

Thereafter, petitioner filed a corporate surety bond in the sum of $3,000 issued by a surety company authorized to do business in the State of California, together with a statement of permanent address, as required by the provisions of section [777405].2 of the Probate Code, showing petitioner’s permanent address as 1220 Pickwick Place, Indianapolis, Indiana. This statement was duly acknowledged by petitioner before a notary public of the State of Indiana, County of Marion.

On May 1, 1964, petitioner, through her attorney, presented to respondent letters testamentary, on the form currently in use by the superior court, and bearing the oath of office subscribed by petitioner before a notary public of the State of Indiana, County of Marion, and with a jurat attached thereto signed and sealed by the notary public with an attached exemplification issued by the Clerk of the County of Marion, State of Indiana, and ex officio Clerk of the Circuit Court for said county and state, attesting that the notary public was at the time authorized by the laws of the state to administer oaths and certifying the signature of the notary public was genuine and the jurat was executed and acknowledged according to the laws of the State of Indiana.