McIntyre

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:

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, ...”

Because appellant takes under the will and respondent does not, the exception gives appellant priority over respondent,…