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Court of Appeal, Fourth District, Division 1, California.

IN RE: The ESTATE of Harry M. STEPHENS, etc., Deceased.

Civ. 9142.

Decided: September 25, 1968

Frank T. Hennessey, North Hollywood, and Edward L. Lascher, Ventura, for appellant. Adrian Kuyper, County Counsel, and John M. Patterson, Deputy County Counsel, for respondent.


Appeal taken from an order appointing the Public Administrator of Orange County (respondent) administrator of the Estate of Harry M. Stephens, deceased (decedent), in preference to the application of Leah R. Field, appellant.   Decedent Stephens died intestate, survived by his mother, Olive M. Stephens, his sole heir at law.   Mrs. Stephens died testate nine days later.   By her will she left her estate (including her interest in decedent's estate), to her sister (decedent's aunt and appellant herein) and to two nieces.   Appellant was appointed administrator with the will annexed of Mrs. Stephens' estate in Los Angeles County, and applied for letters of administration for decedent's estate in Orange County.   Respondent filed a counter-application for letters of administration which was granted and the instant appeal was taken.

The application of Probate Code, section 422 to the facts recited is the only issue to be decided.

Probate Code, section 422 reads as follows:

“Administration of the estate of a person dying intestate must be granted to one or more of the following persons, who are entitled to letters in the following order, the relatives of the decedent being entitled to priority only when they are entitled to succeed to the estate or some portion thereof:

“(1) The surviving spouse, or some competent person whom he or she may request to have appointed.

“(2) The children.

“(3) The grandchildren.

“(4) The parents.

“(5) The brothers and sisters.

“(6) The next of kin entitled to share in the estate.

“(7) The relatives of a previously deceased spouse, when such relatives are entitled to succeed to some portion of the estate.

“(8) The public administrator.

“(9) The creditors.

“(10) Any person legally competent.”

Both parties argue the case with reference only to the body of the statute and classifications (8) and (10, “public administrator” and “any person legally competent” respectively.   Neither makes reference to classification (6) “next of kin entitled to share in the estate.”   This last classification must be taken into account and given consideration we believe, for clearly appellant falls within that classification regardless of whether she is deemed a relative “entitled to succeed to the estate or some portion thereof.”   Such consideration was given in Estate of Jacobs, 100 Cal.App.2d 452, 223 P.2d 898, hearing denied by Supreme Court, a case not discussed by either party.

In Jacobs letters of administration with the will annexed were issued to the sole beneficiary of a will to the exclusion of the public administrator.   The legatee was a next of kin (relative) who would not have shared in the estate if the decedent had died intestate.   The public administrator appealed, relying upon his claim of statutory right.   The argument of the public administrator was that the words “entitled to share in the estate” in relation to next of kin must be ignored;  that “relatives * * * entitled to succeed to the estate” is the phrase which controls.   The court rejected this view, saying:

“Subdivision 6 is a special provision, applicable only to the next of kin.   It is incompatible with and supersedes the general provision within its sphere.   It limits and controls the general provision.  (Citation.)  ‘To share in’ means to participate in, to partake of.  (Webster's New International Dict., 2d ed.)   It is a broader and more inclusive term than ‘to succeed to.’ ”  (Estate of Jacobs, 100 Cal.App.2d 452, 459, 223 P.2d 898, 903.)

Although only by virtue of the will of “the relatives * * * some portion” of decedent's estate is appellant in a position to participate in decedent's estate, nevertheless, at the time of the order here appealed from she was a next of kin who would share in decedent's estate.   We are persuaded by the reasoning of Estate of Jacobs, supra, 100 Cal.App.2d 452, 223 P.2d 898 (Cf. Estate of Mullane, 253 Cal.App.2d 441, 61 Cal.Rptr. 366), and deem its extension to the facts of this case proper.

In sustaining appellant's position we do not approve, however, of that part of appellant's argument which appears to suggest improper motivation upon the part of respondent in asserting his claimed right to appointment.

The order appealed from is reversed.

COUGHLIN, Acting P.J., and WHELAN, J., concur.



LAZAR, Judge pro tem.* FN* Assigned by the Chairman of the Judicial Council.

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