Brown v. Stevens

MOORE, P. J. The question poséd by this appeal is whether the resident assignee of a nonresident legatee under a domestic will is entitled to priority over the public administrator to be appointed as administrator with will annexed, even though such assignee would have inherited had there been no will.

Decedent was the widow of one Palmer Collins. The court found that her next of kin were her brother, Charles Carter of Iowa, and her nephew, Irwin Stevens of Long Beach, California ; that petitioners are residents of California but that neither are they legatees nor do they succeed to any part of decedent’s estate under the will; that Myra Barber, a nonresident beneficiary under the will and daughter of Palmer Collins, has assigned an undivided interest in her legacy to her nephew, Irwin Stevens, who in turn assigned an undivided interest of his share to his wife, Nellie, which entitles her to succeed to a part of decedent’s estate, “a portion of which was the community property of decedent and Palmer Collins.” (Estate of Watts, 179 Cal. 20, 23 [175 P. 415].)

No contention for the right of Irwin Stevens to be appointed administrator with will annexed is advanced on this appeal. Happily so, for no basis for such appointment can be found in any of the statutes which prescribe the guiding [196]rules. Section 422, Probate Code,1 excludes Irwin by reason of the fact that he does not come within the first six classes of potential appointees. While he is entitled to share in the estate only by virtue of the assignment he is not a legatee, nor is he next of kin.

However, appellants seriously urge that it was error to deny letters to Nellie Stevens. They contend that inasmuch as Nellie is not only assignee of a legatee of decedent but also would be entitled to take on distribution had Mrs. Collins died intestate, she is entitled to letters of administration in preference to the public official. In support of such contention they quote section 409, Probate Code, which reads: . 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, as to foreign wills, a person who is interested in the will has priority over one who is not. ’ ’ The next step in their argument is that Nellie, as a bona fide resident of California, a niece of Palmer Collins and therefore heir at law of decedent, is entitled to be appointed. They point to the language of section 422 which places the public administrator in the eighth class, next below “the relatives of a previously deceased spouse, when such relatives are entitled to succeed to some portion of the estate.” While Nellie’s California residence might qualify her for the appointment as provided by section 420, she has not been nominated by any of the classes of persons designated by section 4232 to entitle her to be named administratrix. Since she is not “entitled to succeed to some portion of the estate’-’ as is