Berry v. Wakefield

California Court of Appeal Jan 13, 1943 No. Civ. No. 3071Published

Before: Barnard

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Holding. The court held that the trial court erred in denying the widow's nominee letters of administration because the evidence did not support the finding that the nominee was incompetent or disqualified under the Probate Code.

Issues

Whether the trial court erred in finding the widow's nominee incompetent to serve as administrator of the estate.
Whether the courts have the authority to add disqualifications for administrators beyond those provided by the Legislature.

Disposition. reversed

Quotations verified verbatim against the opinion

“We can find nothing in the record to sustain the conclusion drawn by the court that the appellant Myers is not competent.”

“The courts have no right to add to the disqualifications provided by the Legislature.”

BARNARD, P. J. This is an appeal from orders granting and denying petitions for letters of administration, respectively.

[622]Harry Berry, a resident of Fresno County, died intestate on April 2, 1942, leaving an estate- in that county and leaving surviving Bella Berry, his widow, and two adult sons, Jerome Berry and Stanley Berry. At the request of certain creditors the public administrator on April 30, 1942, filed a petition for letters of administration. On May 2, 1942, the widow filed her nomination of Nathan Myers and requested that letters of administration be issued to him. On May 9, 1942, Myers filed written opposition to the petition of the public administrator based upon his own prior right to letters by reason of his nomination by the widow, and also filed a petition for the issuance of letters to him. No opposition to his petition was filed.

The two petitions for letters were heard together. The court found that the decedent and Bella Berry were husband and wife, but that they had not lived together for about 20 years; that Nathan Myers is the father-in-law of Jerome Berry, one of the sons of the deceased; that Nathan Myers, if appointed administrator of said estate, intended to leave the active administration of the affairs of the estate to Jeróme Berry and Stanley Berry; that Jerome Berry had previously been convicted of a crime and had served a portion of a jail sentence; that Nathan Myers resides in San Francisco and the bulk of the estate of the decedent is in the county of Fresno; that Nathan Myers is a man of little business experience and has had no experience in the administration of estates of deceased persons; that “he is closely allied and friendly with the heirs at law of said decedent and that the heirs are antagonistic to the creditors of said deceased”; that the deceased, prior to his death, attempted to defraud some of his creditors; that Nathan Myers, if appointed administrator, would in all probability not be fair to the creditors of the deceased; and that Nathan Myers is improvident and lacks understanding in the affairs of the estate of the deceased. As a conclusion of law, it was found “that the said Nathan Myers is a person not competent to serve as the administrator of the above-entitled estate.” Myers’ petition was denied and letters were issued to the public administrator. This appeal followed, and no brief has been filed on behalf of the respondent.

It appears from the evidence that the deceased left an insurance policy for $1,000, a house and lot in Fresno, and one share of stock in a corporation which owned a business in which the deceased had been engaged. It further appears

Berry v. Wakefield

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