McIntyre v. Brandt

BROWN (Gerald), P. J. William J. Mullane died in August 1966. The executor named in his will predeceased him. In September 1966, appellant residuary legatee McIntyre and the Public Administrator of Orange County each petitioned for appointment as administrator with the will annexed of Mullane’s estate. The superior court appointed the public administrator. McIntyre appeals from the order of appointment.

The sole issue is whether appellant or respondent has priority of appointment under Probate Code, section 409.

The applicable sentence in section 409 begins: “, . . Persons are entitled to appointment as administrators with the will annexed in the same order of priority as in the appointment of administrators, ...”

Priority in appointment of administrators is dictated by Probate Code, section 422:

“Administration of the estate of a person dying intestate [442]must be granted to one or more of the following persons, who are entitled to letters in the following order, the relatives of the decedent being entitled to prioritjr only when they are entitled to succeed to the estate or some portion thereof:

“(1) The surviving spouse, or some competent person whom he or she may request to have appointed.

“(2) The children.

“ (3) The grandchildren.

“(4) The parents.

“ (5) The brothers and sisters.

“ (6) The next of kin entitled to share in the estate.

“(7) The relatives of a previously deceased spouse, when such relatives are entitled to succeed to some portion of the estate.

“ (8) The public administrator.

“(9) The creditors.

‘ ‘ (10) Any person legally competent. ’ ’

This language of section 409 and section 422, considered alone, would give respondent priority, because he is in category (8) and appellant is in (10).

Section 409, however, continues: “. . . except that, one who takes under the will has priority over one who does not, ...”