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In re Estate of Kelley

Supreme Court of California
Nov 19, 1898
122 Cal. 379 (Cal. 1898)


         Department Two

         APPEAL from a judgment of the Superior Court of Riverside county removing an executrix and appointing the public administrator as administrator with the will annexed. J. S. Noyes, Judge.


         Eugene Van Voorhis, and Curtis & Curtis, for Appellant.

         L. Gill, for Respondent.

         JUDGES: Chipman, C. Searls, C., and Belcher, C., concurred. Henshaw, J., Temple, J., McFarland, J.


          CHIPMAN, Judge

         Petition of Luther C. Russell, public administrator of Riverside county, praying that letters testamentary issued to Frances A. Van Voorhis be revoked, and that letters of administration with the will annexed be issued to him. The court gave judgment removing the executrix and appointing petitioner as prayed for, from which the executrix appeals on the judgment-roll alone.

         The court found that deceased died testate January 7, 1895, naming appellant executrix; on January 28th she filed her petition for probate of the will and for letters testamentary, which duly issued February 11th, and she thereupon duly qualified as executrix; February 21st she filed her inventory and appraisement and took possession of the property of the estate; at that time she was a resident of the city of Rochester, Monroe county, state of New York; immediately after issuance of letters she returned to her home in Rochester, and has continuously resided and now resides there; she has not come into this state nor submitted herself to the jurisdiction of the court since her appointment, nor has she personally conducted the affairs of the estate; she has never filed any account of her administration except an account filed November 16, 1897, and after application for her removal had been made by the public administrator.

         " As a conclusion of law from the foregoing facts the court finds that the said Frances A. Van Voorhis. .. . has forfeited her right to further act as such executrix, and she is therefore removed as such executrix. .. . and that Luther C. Russell, public administrator. .. . is entitled to letters," et cetera.

         The question presented is: Should the letters of a nonresident executor be revoked who, upon receiving his appointment and filing his inventory, permanently removes from the state and does not at any time return to personally conduct the business of the estate or place himself within the jurisdiction of the court? The executrix in this proceeding was appointed February 11, 1895, and filed her inventory February 21st. She then returned to her home in Rochester, New York, where she ever since has remained. The court found that she had not come into this state nor submitted herself to the jurisdiction of the court since her appointment, nor personally conducted [55 P. 137] the affairs of the estate. She was cited to appear and show cause why her letters should not be revoked. She appeared by attorneys, who filed a demurrer to the petition and also filed her first account. She did not appear personally, nor did she make any answer to the citation. We think the trial court had the power to revoke the letters, and that the findings justify its exercise.

         The statute forbids the appointment of a nonresident as administrator. (Code Civ. Proc., sec. 1369.) Nonresidence, however, is not made a disqualification to the appointment of an executor. (Code Civ. Proc., sec. 1350.) It was held in Estate of Brown , 80 Cal. 384, that a nonresident named as executor in a will might apply for letters through an attorney and would be held to be constructively present for that purpose; but it was added: "Of course, the appointee must come here within a reasonable time and personally submit himself to the jurisdiction of the court, and personally conduct the settlement of the estate." The provisions for the "removals and suspensions in certain cases" of executors and administrators are found in sections 1436 to 1440 inclusive. The judge may suspend the powers of an executor for various causes, among them: "Whenever. .. . any executor. .. . has permanently removed from the state" (sec. 1436); and it then becomes the duty of the judge to cite the executor "to appear and show cause why his letters should not be revoked." If he appear, and "the court is satisfied that there exists cause for his removal, his letters must be revoked," et cetera (sec. 1437). The sections following relate to the procedure upon the hearing. We do not think that the court must first suspend the executor before citing him to appear and show cause why his letters should not be revoked. The suspension looks to the removal of the executor and is a step toward it, but not a necessary one. Usually the grounds of suspension would justify removal, but the former takes place without a hearing, while the latter cannot. But as it becomes the duty of the court to issue the citation after the suspension, we see no reason why it may not reach the ultimate object -- removal -- by a direct proceeding, as was done in this case. Section 1354 of the Code of Civil Procedure provides for the case of a person absent from the state who is named as an executor, and there is another who qualifies, the absentee may be admitted as joint executor upon his return. The phrase "has permanently removed from the state," in section 1436, may more properly refer to a resident executor who has permanently removed from the state, but the reason for revoking the letters in such case applies equally to a nonresident executor who comes here to receive his appointment and then permanently withdraws from the state and remains away. It is his permanent absence from the place where the business is to be transacted, beyond the process of the court and where the creditors of the estate and others having business with it cannot reach him, that creates the disqualification; and this is equally true of both resident and nonresident executors. Our laws are made to promote the interests and convenience of our own citizens, and should be construed, if possible, within the rules of construction, to promote their welfare. We do not wish to be understood as destroying, by construction, the right of the testator to name a nonresident as his executor; but we do say that the statute should be so construed as to give ground of removal of a nonresident executor when he fails to come to this state and personally conduct the business of the estate at such times and as frequently as the interests of the estate and of those concerned in its settlement may require. And the court, exercising a sound discretion, must be the judge as to what will constitute the permanent absence from the state.

         If it be said that the public administrator is a volunteer, without any interest in the estate, and ought not to be heard by this petition, the answer is that it is immaterial how the judge obtains the information on which he acts. He may proceed "whenever. .. . from his own knowledge, or from credible information," the facts may appear. (Code Civ. Proc., sec. 1436.)

         The judgment and order should be affirmed.

         For the reasons given in the foregoing opinion, the judgment and order are affirmed.

Summaries of

In re Estate of Kelley

Supreme Court of California
Nov 19, 1898
122 Cal. 379 (Cal. 1898)
Case details for

In re Estate of Kelley

Case Details

Full title:In the Matter of the Estate of MORGAN G. KELLEY, Deceased. v. LUTHER C…

Court:Supreme Court of California

Date published: Nov 19, 1898


122 Cal. 379 (Cal. 1898)
55 P. 136

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