Kysar v. Petterson

Opinion

CLARK, J. This is an appeal from an order granting letters of administration with will annexed to the nominee of testator’s spouse. Appellant is the nominee of testator’s children.

Testator executed a holographic will. The will leaves virtually all of testator’s property to his children and sisters. The relevant portion of the will provides: “[testator’s wife] is to receive one dollar only ($1 no/100). Nothing else. She left me and my house on Feb. 10, 1965. Took all her possessions and all her furniture. I have paid her in cash for her share of the Carolina property. Total amount paid in 3 years time $3,000 no/100. Three Thousand Dollars. I have a receipt from [testator’s wife] stating Paid in Full to date. Paid in Providence, Rhode Island. July 1962. She ... has no claim of any kind against any of the property. Mr. J. G. Robertson has all of the details concerning [testator’s wife]. Do not pay her anything. She stole enough money from me during the time I was at sea working.” (Italics in original.)

The will did not provide for an executor. In 1973, an administrator with the will annexed was appointed without opposition. When the appointed administrator died, testator’s spouse and children filed separate petitions for letters of administration seeking to nominate respondent and appellant respectively. The probate court granted letters of administration to respondent, testator’s wife’s nominee, imposing the requirement of a bond in the amount of $24,000.

Appellant contends the probate court erred in awarding letters of administration to respondent. Appellant argues she has priority over respondent pursuant to Probate Code section 409.1 Her contention is correct.

[275]Section 409 provides in relevant part: “Persons are entitled to appointment as administrators with the will annexed in the same order of priority as in the appointment of administrators, except that, one who takes under the will has priority over one who does not, . . .” (Italics added.) Section 422 grants priority in appointment of administrators first to a surviving spouse or a person the spouse requests, and then to the children.

The policy in favor of takers is also reflected by subdivision (b) of the latter section stating: “A relative of the decedent who is entitled to priority under subdivision (a) is entitled to priority only if either of the following facts exist: [H] (1) The relative is entitled to succeed to all or part of the estate.”2 For purposes of this statute, a spouse is a relative of the decedent. {In re Davis (1895) 106 Cal. 453, 455 [39 P. 756].)