Davis v. Lyman

California Court of Appeal Nov 30, 1942 No. Civ. No. 12184Published

Before: Dooling

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Holding. The court held that a nominator may be estopped from withdrawing a nomination if the nominee acted to their detriment in reliance on it, and that a guardian of an incompetent heir has priority over the nominee of another heir. However, the appointment of a nominee over a guardian cannot be sustained without an express judicial finding of the guardian's incompetence.

Issues

Whether petitioners were denied an opportunity to present evidence when they submitted their petitions without objection.
Whether a nominator is estopped from withdrawing a nomination if the nominee has incurred expenses in reliance thereon.
Whether the guardian of an incompetent heir has priority for letters of administration over the nominee of another heir.
Whether an administrator can be appointed over a guardian without an express adjudication of the guardian's incompetence.

Disposition. reversed

Quotations verified verbatim against the opinion

“We conclude that a nominator may be held in the sound discretion of the probate court estopped to withdraw the nomination of another to be administrator if the nominee has acted to his detriment in reliance upon the nomination.”

“It follows that John J. Davis as guardian of one daughter was superior to the nominee of the other daughter in the right to have letters issued.”

“In the absence of an express adjudication of Davis’ ineompetency the order appointing Lyman cannot stand.”

DOOLING, J. pro tem. Orvilla F. Davis died intestate leaving two daughters, Eva Davis Kerr and Irene Davis, and a husband, David A- Davis, who had apparently been divorced from her many years before by a Nevada court. Four petitions for letters of administration of her estate were filed: One by Sheldon Brandenburger as nominee of Eva Davis Kerr; one by Richard M. Lyman, Jr., also as nominee of the same daughter; one by John J. Davis as guardian of Irene Davis, who is an incompetent; and the fourth by David A. Davis as surviving husband. Eva Davis Kerr had first nominated Brandenburger in writing and later had executed another writing revoking the nomination of Brandenburger and nominating Lyman.

The court after a hearing made an order appointing Lyman administrator and from this order the three other petitioners appeal. Appellants Brandenburger and David A. Davis urge on appeal that they were denied an opportunity to present any evidence in support of their respective petitions. This claim is based upon the fact that on the hearing they both joined with appellant John J. Davis in asserting that he was entitled to the appointment, and they now argue that they believed that if the court decided not to appoint John J. Davis they would be given an opportunity to present evidence in support of their respective petitions at a later date. As we read the record it does not support them in this contention. At the beginning of the hearing Mr. Hatch, representing David A. Davis, made the following statement:

“But I am the fourth in line here, so far as proceeding is concerned, and if the Court agrees that one of the others is entitled to Letters, I will not press my application.”

During the hearing Mr. Wortz, representing the petitioner Brandenburger, stated to the court:

“And so far as my client is concerned, inasmuch as Mrs. Kerr has already filed a renunciation of her nomination of Mr. Brandenburger, I am in a position of having a client without any right, so that we, too, yield in favor of Mr. John Davis.”

[786]At the close of the evidence in support of the petitions of John J. Davis and Lyman the court said: “Well, let the matter be submitted. I want to look up some of the decisions on this matter.”

Neither counsel for Brandenburger nor David A. Davis objected to the submission and neither requested the right to produce evidence or that the hearing of their petitions be continued to a later date, although it was clear from what had preceded the order of submission that the court was uncertain as to whether John J. Davis or Lyman should receive the appointment. Appellants cannot blow cold in the trial court and hot on appeal. Having led the trial court to believe that they were satisfied to submit their petitions without evidence they are in no position to complain now that the trial court should have given them an opportunity to be heard.

Davis v. Lyman

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