United States National Bank v. Kristovich

FOURT, J. This is an appeal by the public administrator “from so much of the Judgment . . . that appoints the United States National Bank of San Diego as administrator with will annexed of said estate, issues letters of administration with will annexed to the same and denies the petition of Baldo M. Kristovich, Public Administrator, for letters of administration with will annexed.”

[689]A brief résumé of the relevant facts is as follows: decedent Edward F. King died testate a resident of Los Angeles County, leaving an estate consisting of real and personal property. His will, which did not name an executor, devised and bequeathed the entire estate to his wife with the provision that if she should not survive him the estate would pass to his half-brother, Theodore Franklin King, a resident of Tennessee. Decedent’s wife predeceased him. His nonresident half-brother (hereinafter referred to as “heir”) is the sole beneficiary under the will.

On April 28, 1961, respondent filed its petition for probate of the will and for letters of administration with will annexed, together with a nomination by the heir asking that respondent be appointed as said administrator. This petition, accompanied by the nomination, was set for hearing on May 26, 1961, in the superior court.

On May 12,1961, appellant filed a second petition for letters of administration with will annexed, asserting that respondent was the nominee of a nonresident heir at law and legatee and that consequently the appellant public administrator had a prior right to letters of administration with will annexed. This petition was likewise set for hearing on May 26, 1961.

The two petitions were heard together, at which time the trial court admitted the will to probate, denied the appellant’s petition, and granted respondent’s petition. The findings of fact and conclusions of law (i.e., order admitting will to probate and for letters of administration with will annexed) were filed June 2, 1961.

The issues in this ease may be stated as follows: where the public administrator exercises his discretion and applies for letters of administration, is the trial court required to follow the order of priority of right to letters set forth in Probate Code section 422, and thereby appoint the public administrator instead of the nominee of a nonresident heir ?

With an exception not here pertinent, nonresidents are ineligible for appointment as administrator or to nominate an administrator. (Estate of Jacobs, 100 Cal.App.2d 452, 453 [223 P.2d 898]; Estate of Pardue, 22 Cal.App.2d 178 [70 P.2d 678] ; Prob. Code, § 420.) Respondent bank, as nominee of a nonresident heir, comes within the tenth class set forth in Probate Code section 422 (i.e., “Any person legally competent.”). On the other hand, appellant comes within the eighth class.