Freitas v. Clowdsley

ADAMS, P. J. Manuel Gonzales died March 2, 1948, in San Joaquin County, leaving an estate therein but no known resident relatives.. On March 11th, Sue H. Clowdsley, public administrator, filed a petition for letters of administration [441]of the estate of said decedent, and letters were issued to her on March 22d. Subsequently that official found among the effects of decedent what purported to be a copy of a will which named Law T. Freitas executor, and investigation disclosed that Mr. Freitas had the original will in his possession. On April 22d, he filed a petition for probate and on May 8th, the court made an order admitting the will to probate, appointing him executor, and vacating the prior appointment of respondent.

On June 21st, respondent filed her first and final account, and same was approved July 7th, but the question of proration of fees between appellant and respondent and their respective counsel was deferred from time to time until August 5th, at which time 60 per cent of the statutory fees was allotted to respondent and her counsel, and 40 per cent to appellant and his counsel. This appeal was then taken by the executor who contends that the appointment of respondent was not authorized by law, that therefore she was not entitled to any compensation; but that, in any event, she was not entitled to the proportion of fees allowed and the probate court abused its discretion in awarding same to her.

Appellant first argues that at least 30 days should have elapsed after the death of decedent, before the appointment of any administrator of his estate, because of the provision of section 324 of the Probate Code that reads:

"If the person named in a will as executor, for thirty days after he has knowledge of the death of the testator and that he is named as executor, fails to petition the proper court for the probate of the will and that letters testamentary be issued to him, he may be held to have renounced his right to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown. ’ ’

No authority for such construction of that section is cited, and we are of the opinion that it has no justification. The gist of the section is that an executor named in a will who does not, within 30 days after he has knowledge of the death of a testator and that he is named as executor of decedent’s will, petition for probate may be held to have renounced his right to letters. It in no sense places any limitation upon the powers of a probate court to appoint an administrator of the estate of a decedent, especially where, as here, the existence of a will is not known, and a petition for letters