Opinion
Department Two
Hearing In Bank Denied.
Appeal from orders of the Superior Court of the City and County of San Francisco granting and refusing petitions for letters of administration.
COUNSEL:
Herbert Choynski, for Appellant.
T. I. Bergin, for Respondent.
JUDGES: McFarland, J. Fitzgerald, J., and De Haven, J., concurred.
OPINION
McFARLAND, Judge
Daniel J. Bergin, deceased, died in March, 1892, in the city of Dublin, Ireland, leaving a last will, which was duly probated in the proper court of that country. He left some personal property in the city and county of San Francisco, California. By said will certain persons were appointed executors, and the respondent herein, Thomas I. Bergin, who is a citizen and resident of San Francisco, in the state of California, was named as a devisee. The said respondent produced and filed with the superior court of the city and county of San Francisco an authenticated copy of said will and probate, together with a petition that the same be admitted to probate here, and that letters of administration with the will annexed be issued to him. Afterwards, A. C. Freese, public administrator of said city and county, also filed a petition for the probate of said will, and for the issuance of letters of administration to him. The court, after a hearing of both petitions, admitted the will to probate, ordered that letters be granted to said Thomas I. Bergin, and denied the petition of Freese; and from these orders Freese appeals.
We are satisfied that the ruling of the lower court was correct. The part of the code which governs this case is found in article III, chapter 2, title XI, part III, of the Code of Civil Procedure, embracing sections 1322 to 1324 inclusive, under the head of "Probate of Foreign Wills." It is there provided that an authenticated copy of the will, and of its probate in the foreign country, "shall be produced by the executor or other person interested in the will, with a petition for letters; " and that, after proper notice and proofs, there shall be "letters testamentary, [34 P. 868] or of administration, issued thereon." Said article III deals specially with the subject matter of foreign wills, and it must prevail over all conflicting provisions "as to all matters and questions arising out of the subject matter of such article." (Pol. Code, sec. 4483.) By that chapter it is clearly provided that letters testamentary must be granted to the executor upon his petition, for letters testamentary could be granted only to an executor; and we think it also clear that under the provisions of said chapter letters "of administration" must be granted to a "person interested in the will" who applies for them, in the absence of a petition by the executors. None of the cases relied on by appellant involved in any way a foreign will, except Estate of Beech , 63 Cal. 458, and In re Garber , 74 Cal. 338; and the only matter passed upon in those cases was the general right of a nonresident to nominate an administrator. The very question involved in the case at bar was not before the court in those cases, because here the respondent, who applied in his own right, was a citizen and resident in California; and there was no reference in the opinions of the court in those cases to said chapter III, or any discussion of the point at issue in the case at bar.
We do not desire, however, to have this opinion taken as assuming that a public administrator would, under any circumstances, be entitled to letters of administration in a case of a foreign will. That matter was clearly not in the mind of the court in any of the cases cited; and whether or not the general provisions of the code about public administrators refer only to the estates of persons dying in their counties, and to domestic wills, must be considered an open question.
Orders appealed from affirmed.