Estate of O'Dea

From an order of the superior court sitting in probate, granting a judgment of nonsuit and dismissal of appellant’s petition for revocation of letters of administration issued to respondents and requesting the issuance of letters of administration to himself, appellant appeals.

These are the essential facts :

These are the questions to be determined:

The first question must be answered in the affirmative. The law is settled in California that, where letters of administration have been granted to any person other than the surviving (1) spouse, (2) child, (3) parent, (4) brother, or (5) sister *181 of the intestate, or (6) the public administrator, any one of them who is competent may file a petition for the revocation of the letters theretofore issued and pray that letters of administration be issued to the petitioner. (Sec. 450, Prob. Code; Estate of Way, 29 Cal. App. (2d) 669, 673 [ 85 Pac. (2d) 563 ].)

The second question must be answered in the negative. The law is settled in California that under section 450 of the Probate Code a person having superior right to letters of administration can directly attack the issuance of letters of administration to one having a secondary…

I concur in the judg ment. In my opinion Estate of Way, supra, does not overrule any prior decision.

A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 19, 1939.

McComb, J.

From an order of the superior court sitting in probate, granting a judgment of nonsuit and dismissal of appellant's petition for revocation of letters of administration issued to respondents and requesting the issuance of letters of administration to himself, appellant appeals.

These are the essential facts:

January 22, 1938, Michael F. O'Dea died intestate at Los Angeles. Thereafter letters of administration were issued to respondent Harriett T. O'Dea, a second counsin of decedent, and to respondent Citizens National Trust and Savings Bank of Los Angeles, who was nominated by Miss O'Dea as coadministrator. Subsequently, upon learning that there were three nonresident, first cousins of decedent, appellant filed a petition to have the letters of administration theretofore issued revoked and to have himself appointed as administrator of decedent's estate. The probate judge sustained an objection to the introduction of any evidence and granted a judgment of nonsuit and dismissal of the petition.

[1] These are the questions to be determined:

First: Does section 450 of the Probate Code authorize the public administrator, after letters of administration have been granted…