In re Frey

I. Jacob Frey was never appointed executor by the Probate Court. (Sec. 1349, Code Civil Procedure.)

*660 II. The letters testamentary issued to Jacob Frey, March 11th, 1874, was and is void, because issued without Jacob Frey having been appointed executor by the Court. (Sec. 1349, Code Civil Procedure.)

III. Rosine Frey, as the surviving wife of the said testator, was entitled to have distributed to her one-half of the whole estate unaffected by the will of the deceased. “ Upon the death of the husband one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband.” * * * (Sec. 1402, Civil Code; Estate Silvey, 42 Cal. 212 .) And to one-half of the property subject to testamentary disposition under the will of the testator. (Beard v. Knox, 5 Cal. 252 .)

Ourtis & Clunie, for Respondent.

1. Jacob Frey was.appointed executor by the will of Henry Frey, and letters testamentary were issued to him. The mistake in the name in the order appointing him executor is but slight, and the Court will not regard trifles. (Code Civil Procedure, sec. 475.) If advantage could be taken of the error in the order appointing…