Kristovich v. Vernon

KINGSLEY, J. This is an appeal from an order revoking letters of administration previously issued to Lynne Vernon and directing that letters issue to the Los Angeles County Public Administrator.

Mary E. Pascoe, a resident of Los Angeles, died intestate,1 leaving an estate subject to probate in this state. She was survived by two nephews, one a resident of Oregon and one a resident of Virginia, a niece, a resident of Iowa, and a cousin, named Fay Milner, a resident of Los Angeles. Petitions for letters of administration were filed by Lynne Vernon, a longtime friend who is unrelated to decedent, and by the public administrator.

Through some unexplained inadvertence, the two petitions were not heard together as section 442 of the Probate Code provides. The petition of Lynne Vernon was granted on April 28, 1964, and she duly qualified. Thereafter, the Virginia nephew assigned a 2 percent interest in his distributive share to the California cousin, Fay Milner, and Fay Milner, in turn, nominated Lynne Vernon to be the administratrix of the estate.

On May 2, 1964, the public administrator filed a petition, under section 450 of the Probate Code, seeking revocation of the letters theretofore issued to Lynne Vernon and the issuance of letters to him. This petition was granted by an order dated February 1, 1965, from which the present appeal was taken.

I

Although section 423 of the Probate Code allows the court, where petition is by a nominee of one entitled to letters, to [87]deny that petition and appoint a person of a class subsequent to the nominator, it is clear that the order under review was not made in the exercise of the discretion thus conferred but was based solely on the theory that the public administrator was entitled, as of right, to priority in appointment over Pay Milner or her nominee, and the respondent makes no attempt to support the order under that provision of section 423.

II

Nor does Lynne Vernon seek to retain letters on the theory that she stands in the shoes of the Virginia nephew. No person is competent to serve as an administrator who is not a resident of this state (Prob. Code, § 420), and it is well settled that a nominee of a nonresident heir has no better standing (Estate of Jacobs (1950) 100 Cal.App.2d 452 [223 P.2d 898]; Estate of Pardue (1937) 22 Cal.App.2d 178 [70 P.2d 678]). The parties here agree that Pay Milner’s status, insofar as she might seek to base her claim on a representation of the Virginia nephew, is no better by reason of the fact that she is a partial assignee from, rather than a nominee of, that relative. And Lynne Vernon, of course, has only that standing which came to her as Fay Milner’s nominee.