MICHAEL v. SCANNELL

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Court of Appeal, First District, Division 5, California.

ESTATE OF Guenter KAUSSEN, Deceased. Peter MICHAEL, Petitioner and Appellant, v. James R. SCANNELL, as Public Administrator, etc., Objector and Respondent.

ESTATE OF Guenter KAUSSEN, Deceased. Ingeborg SKOWRONEK et al., Petitioners and Appellants, v. James R. SCANNELL, as Public Administrator, etc., Objector and Respondent.

GUARDIANSHIP OF the ESTATE OF Beatrix KAUSSEN, a Minor, et al. Beatrix KAUSSEN, a Minor, et al., Petitioners and Appellants, v. James R. SCANNELL, as Public Administrator, etc., Objector and Respondent. *

A032298 to A032300.

Decided: March 24, 1987

Robert A. Mills, John R. Reese, Warren P. Felger, McCutchen, Doyle, Brown & Enersen, San Francisco, for petitioners and appellants. Carl Lippenberger, San Francisco, for objector and respondent.

Petitioners appeal 1 from an order of the probate court issuing letters of administration to the public administrator and from orders denying the requested appointment of a guardian for decedent's four daughters' estates.   We reverse the order appointing the public administrator.2

Guenter Kaussen died testate on April 14, 1985.   His will left his entire estate, estimated at $26 million, to Ingeborg Skowronek, his “lifetime companion” and the mother of his four daughters.   The will did not mention an executor.   The will was executed before any of the daughters were born and it is conceded that they are pretermitted heirs.   Skowronek and her daughters resided in West Germany.

Skowronek petitioned the court for probate of the will and for letters of administration naming Peter Michael as administrator with the will annexed.   The four daughters also nominated Michael as administrator.   The public administrator likewise petitioned for probate and for letters of administration with the will annexed.

Subsequently, the public administrator amended his petition to include an alternative request for appointment as administrator.

One month later, Skowronek and three of the daughters filed separate petitions to have Michael appointed guardian of the daughters' estates, which were denied.

In the hearing on the petitions for letters, the court granted the petition of the public administrator.   On appeal, Skowronek and her daughters contend that they are entitled to statutory priority over the public administrator or, alternatively, that the denial of the nominee, Michael, violates public policy.3

I

The priority of those persons entitled to administer an estate is wholly statutory.  Probate Code section 422 4 provides:  “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:  (1) The surviving spouse, or some competent person whom he or she may request to have appointed․ [¶] (2) The children․ [¶] (10) The public administrator․ [¶] (12) Any person legally competent.”

 The statute requires that a person must be entitled to appointment as administrator before he may be considered among those entitled to priority.   Nonresidents of the United States are ineligible for appointment as administrator.  (§ 420;  Estate of Pascoe (1966) 242 Cal.App.2d 85, 87, 51 Cal.Rptr. 91;  Estate of King (1962) 206 Cal.App.2d 688, 689, 24 Cal.Rptr. 134.)   Skowronek is not decedent's wife and neither she nor her daughters reside in the United States.   As such, they are not entitled to letters of administration and they do not have priority over the public administrator.

 Appellants contend that section 409 grants Skowronek priority since she is the sole beneficiary under the will.   That section provides in pertinent part:  “Persons are entitled to appointment as administrators with the will annexed in the same order of priority as in the appointment of administrators,except that, one who takes under the will has priority over one who does not, and need not be entitled to succeed to the estate or some portion thereof under the law of succession.”  (Emphasis added.)   Citing the underlined language, appellants argue that beneficiaries under the will have priority irrespective of any other order of priority.

The statute requires that the same order of priority for administrators with will annexed be applied as in the appointment of administrators generally, as provided by section 422.  (Estate of Stickelbaut (1960) 54 Cal.2d 390, 395, 6 Cal.Rptr. 7, 353 P.2d 719;  Estate of Wanamaker (1977) 65 Cal.App.3d 587, 593, 135 Cal.Rptr. 333.)   The underscored language is not an exception to the rule we stated above, i.e., that a person must first be entitled to letters of administration.   Rather, it is directed to questions of priority between, for example, a nonrelative beneficiary who takes under the will and a close relative of the decedent who does not or a dispute between disinherited close relatives and a distant relative who is the sole beneficiary.  (Estate of Stickelbaut, supra, 54 Cal.2d at p. 398, 6 Cal.Rptr. 7, 353 P.2d 719;  accord Estate of Stephens (1969) 70 Cal.2d 820, 823, 76 Cal.Rptr. 468, 452 P.2d 684;  Estate of Mullane (1967) 253 Cal.App.2d 441, 442, 61 Cal.Rptr. 366.)   To give the statute the interpretation appellants seek, would reduce the first part of the sentence in section 409 to a nullity.   It is a well-recognized rule of construction that all parts of the statute must be given effect.   (Estate of Jacobs (1950) 100 Cal.App.2d 452, 458–459, 223 P.2d 898.)   Because Skowronek is a nonresident alien, she is not entitled to letters of administration and does not have priority over the public administrator.

II

 The question remains whether the ineligibility of Skowronek and her four daughters to individually act as administrators prevents them from nominating an administrator.   The controlling statute is section 423, which provides in part:  “Administration may be granted to one or more competent persons at the written request of the person entitled, or of the guardian or conservator of the person entitled, filed in court.   If the person making the request is a child ․ of the decedent, the nominee shall have priority next after those in the class of the person making the request․”  (Stats.1980, ch. 955, § 13, p. 3015, emphasis added.)

Prior to 1967, that section required the nominating heir to be a California resident.   The 1967 amendment removed that requirement but still required United States residency.  (Stats.1967, ch. 269, § 1, p. 1427.)   In 1976, the statute was amended to remove the bar of United States residency and permitted residents of foreign countries to nominate.  (Stats.1976, ch. 475, § 1, p. 1220;  7 Witkin, Summary of Cal.Law (8th ed., 1984 supp.) § 300, p. 290.)   The 1980 amendment deleted any mention of the residence of the nominating party.

The public administrator argues that the 1980 amendment repealed the 1967 and 1976 amendments, returning the statute to its pre–1967 form.   This position is untenable.   The statute's history reveals that the Legislature intended to remove all residency requirements which formerly barred the heirs from nominating an administrator.   The 1980 amendment, which is silent on the matter, simply continues this policy from the 1976 statute.   But the public administrator argues that since section 420 requires administrators to be United States citizens, a person who is not a United States resident is not a “person entitled to nominate” within the meaning of section 423.   The Legislature's silence in this matter should not be mistaken for an intention to repeal the 1976 amendment.  “ ‘[T]here is a presumption against repeals by implication;  they will occur only where the two acts are so inconsistent that there is no possibility of concurrent operation, or where the later provision gives undebatable evidence of an intent to supersede the earlier;  the courts are bound to maintain the integrity of both statutes if they may stand together.  [Citations.]’ ”  (Hays v. Wood (1979) 25 Cal.3d 772, 784, 160 Cal.Rptr. 102, 603 P.2d 19;  Dew v. Appleberry (1979) 23 Cal.3d 630, 636, 153 Cal.Rptr. 219, 591 P.2d 509.)

 We find no irreconcilable conflict between the 1980 amendment to section 423 and the earlier amendments.   The later statute eliminated all references to residency which the earlier statute accomplished in express language.   Read in this fashion, the two statutes can be harmonized.   The courts assume that in passing a statute the Legislature was aware of existing related laws and that it intended to maintain a consistent body of rules.   (Hays v. Wood, supra, 25 Cal.3d at p. 784, 160 Cal.Rptr. 102, 603 P.2d 19.)   Our interpretation does not conflict with section 420.   That section applies to persons who would personally serve as administrators.   In section 423, the Legislature carved out an exception for persons who nominate.   A comparison of these statutes indicates that they serve different purposes.   The 1980 amendment to section 420 eliminated the bar of residency in California and required only that the administrator be a United States resident.  (Stats.1980, ch. 955, § 12, p. 3015.)   But for 13 years previous, section 423 did not require California residency for an heir to nominate an administrator.   These statutes are not congruent and the residency requirement in section 420 should not be superimposed on nominating heirs in section 423.   It makes sense to require the administrator to be a United States resident so that the probate court could exercise personal jurisdiction over the administrator if that became necessary in its control over the distribution of the estate.   There is no similar need to have personal jurisdiction over the nominating heir, since that person is further removed from the actual administration of the estate.

The fact that some or all of the daughters were minors is not, in itself, a bar to the right to nominate an administrator if they were otherwise entitled.  (§ 426;  Estate of Graff (1915) 169 Cal. 250, 252–253, 146 P. 657;  Estate of Turner (1904) 143 Cal. 438, 441, 77 P. 144;  Estate of Nicoll (1947) 79 Cal.App.2d 48, 52–53, 179 P.2d 95.)

In summary, we hold that the nonresidency of the daughters does not bar them from nominating an administrator.   This result is in keeping with the policy to place the ability to conduct the administration of the estate in the hands of those persons who would most benefit from it.  (See Estate of Jacobs, supra, 100 Cal.App.2d at p. 454, 223 P.2d 898.)   The trial court erred in denying their petition to appoint Peter Michael administrator with will annexed.

In light of our decision, we need not address the remaining contentions.

 We view the order appointing the public administrator to be voidable only, and not void ab initio.   See Estate of Clark (1939) 33 Cal.App.2d 523, 526, 92 P.2d 505.)   Since his appointment was not procured by fraud and at all times he served in good faith, he is entitled to all statutory compensation properly proved.

The orders denying letters of administration to Peter Michael and appointing the public administrator are reversed and the case is remanded to the probate court for further consideration of the petition of the minors consistent with our holding.   Where appropriate, guardians ad litem should be appointed for the minors.   The public administrator is to continue to serve as administrator of the estate until he is discharged and a successor is ordered to be appointed.

FOOTNOTES

1.   This appeal has been consolidated for argument and disposition.

2.   The notice of appeal is from the minute order denying petitioner's request to probate the will and to appoint Peter Michael administrator with will annexed.   The notice of appeal makes no reference to the order appointing the public administrator.   When justice requires it, a notice of appeal will be liberally construed in favor of its sufficiency.  (Cal.Rules of Court, rule 1(a);  Luz v. Lopes (1960) 55 Cal.2d 54, 59–60, 10 Cal.Rptr. 161, 358 P.2d 289;  Estate of Trissel (1962) 208 Cal.App.2d 188, 190, 25 Cal.Rptr. 205.)   Here, the order appointing the public administrator is simply the opposite side of the issue contained in the notice of appeal.   There is no doubt as to the petitioner's intent in taking this appeal and there is no showing that respondent was misled or prejudiced.  (Luz v. Lopes, supra, 55 Cal.2d at p. 60, 10 Cal.Rptr. 161, 358 P.2d 289.)   Therefore, we treat this as an appeal also from the order granting letters of administration to the public administrator.

3.   We deem the petition to appoint Michael administrator with will annexed also to be a petition for general letters of administration.   The original petition placed all parties on notice that in the event the probate court refused to admit the will to probate, letters of administration would be granted.  (See Luckey v. Superior Court (1930) 209 Cal. 360, 365, 287 P. 450.)

4.   All statutory references are to the Probate Code unless otherwise indicated.

LOW, Presiding Justice.

KING and HANING, JJ., concur.