Thurber v. Maxseiner

California Court of Appeal Aug 15, 1966 No. Civ. No. 28646Published

Before: Frampton

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Holding. The court held that a nomination for administrator made by a person previously adjudged mentally incompetent is void under Civil Code section 40. Consequently, the guardian of the incompetent surviving spouse is entitled to priority for appointment as administrator over a second cousin of the decedent.

Issues

Whether a nomination for administrator made by a person previously adjudged mentally incompetent is valid.
Whether the guardian of an incompetent surviving spouse has priority over a second cousin for appointment as administrator.
Whether the trial court was required to file written findings of fact when the issue of priority was a question of law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Hildegard having been adjudged a mentally incompetent person and not having been restored to capacity, such nominations and delegation were void.”

“The guardian is to be considered a member of the class to which his ward belongs and ahead of all lower classes”

“The respondent, standing in the class of his ward, the surviving spouse, and being a competent person, is entitled to first priority to be appointed as administrator of the estate of William.”

FRAMPTON, J. pro tem.* Appeal from an order granting letters of administration to respondent and denying letters of administration to appellant.

The file below discloses that William Waltz died intestate in the County of Los Angeles on July 28, 1963. He left surviving him his wife, Hildegard Lindstedt Waltz, who had been adjudged to be mentally incompetent and who was confined as a mentally incompetent person in the Veterans Administration Hospital at American Lake in the State of Washington.

On July 30, 1963, the respondent was appointed special administrator of the estate of William. On August 23, 1963, the respondent was appointed as the guardian of the person and estate of Hildegard. On September 12, 1963, the respondent filed his petition, as guardian of Hildegard, seeking appointment as the administrator of the estate of William. Hearing on this petition was set for October 8,1963.

In the petition for special letters of administration the respondent had given the names of Fred Waltz, Laura Waltz, Margaret Shendel, Fern Mosgrove and Harold Moore, and had listed them as adult cousins and had given their addresses showing them to be residents of jurisdictions other than the State of California. In the petition for letters of administra[219]tiou filed by the respondent the foregoing names were omitted with the explanation that “The relatives listed on the Petition for Special Letters of Administration are not included in this Petition inasmuch as your Petitioner learned that these relatives were all children of deceased brothers and sisters of decedent William J. Waltz’s father and therefore not heirs at law of William J. Waltz. ’ ’

On September 30, 1963, the appellant filed her petition seeking her appointment as the administratrix of the estate of William. She alleged in her petition that she was a second cousin of the deceased. This petition alleged that the deceased left a surviving spouse, Hildegard Waltz, a mentally incompetent person, but left no children, issue of deceased children, mother or father, sisters or brothers, or issue of deceased sisters or brothers surviving him. The petition further alleged that the following named persons were second cousins and were heirs at law of the deceased: Pearl Metting, Harold Waltz, J. V. Waltz, O. W. Waltz, Marie Waltz, Bertha Waltz Kerwin, and Nina Waltz Maxseiner, the petitioner and appellant herein.

The petition of Nina was set for hearing on October 22, 1963. This petition does not show her to be the nominee of anyone and her petition has never been amended to show her to be the nominee of any relative of the decedent who is entitled to succeed to the estate of William or any portion thereof.

Thurber v. Maxseiner

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