Amador ledger., 1903-12-04
FRANK FRATEs' ESTATE.
Decision of the Court.

Judge Rust has rendered his decision
in the contest for the administration OF
the estate of Frank Frates as follows:
w. A. Benefits, guardian OK the per-
son and estate of Frank Edward Frates,
a minor, son of deceased, filed petit
tion for letters of administration upon
the estate of said deceased, and Geo.
M. Huberty, public administrators of
Amador county, filed petition for
letters of administration to be issued
thereon to himself as such public ad-
ministrator. Tho two petitions we're
heard together, and after argument
the matter was submitted to the court
for decision.
Sec. 1865 code of civil procedure pro-
yides as follows: administration OF the
es tate of person dying intestate must
beigranted to some one or more per-
sons hereinafter mentioned; the rela-
tiyes of the deceased being entitled to
administer only when they are entitled
to succeed to his personal estate, or
some portion thereof, and they are re-
spectively entitled thereto in the fol-
lowing order: l, The surviving hus-
band or wife; 2, the children: 3, the
public administrator. :"
Sec.. 1868 code of civil procedure pro-
vides: "If the person entitled to ad-
minister is minor or an incompetent
person, letters must be granted to his
or her guardian, or any other person
entitled to letters of administration, in
the discretion of the court" d"
Ii this language means anything, it
means that the court is clothed with
legal discretion to appoint whichever
of the petitioners it deems for the best
interests of the estate; and this con-
clusion is strengthened by our supreme
court, in re. McLaughlin, 103 Cal, 420,
where the court at the end of the de-
cision states that the trial court proper
ly exercised it's discretion in the ap-
pointment of the guardian of the in
competent.
In the amended petition, or last petit
tion filed by the guardian of the
minor, find the following:
"Said deceased at the time of his
death also claimed certain 'rea, prop
erty situated in, the counties of Mon
terey and Alameda, and in the city and
county of San Francisco, state of Cal
ifOrnia, title to which is vested in the
estate of Mary Frances Frates, de-
ceased" Z"
Judgment roll No. 1888 of this su-
perior court shows decree duly given
and made by this court on the 3Oth day
OF October, 1902, adjudging and de-
creeing that this property was the
property of Frank Frates, then alive,
but now deceased, and directing the
administrator of the estate. OF Mary
Frances Frates, deceased, to execute
the necessary and proper conveyances
thereof to said Frank Frates, then in
his lifetime. The judgment and decree
is still in full force and effect.
The petition of the public admins
traitor claims this property to be part
OF the assets of the estate of the said
Frank Frates, deceased.
1t is the duty of the administrator of
an estate to marshal the assets of the
estate for the purpose of paying the
expenses of last illness, funeral charges,
and expenses of administration, and
dividing the residue among the legal
heirs of the deceased in their just pro-
portions; and it does not seem that he
could do this while coming into court
with the confession upon his lips that
the bulk of the property of the estate
did not belong to the estate, but the
legal title was in the estate of some one
else. 1t would seem that if such is
really his belief, that he could best pro-
tect the interests of his ward by not ap-
plying for letters, otherwise there
would arise clash between the credi-
tors of the deceased and the minor
heirs.
am therefore of the opinion that
the interests of the estate of said de-
ceased, Frank Frates, will be best SUBJ
served by the appointment of the pub
lie administrator to be administrator of
his estate.
The law throws more safeguards
around the public administrator than
any other. 1t provides not only that
he shall be responsible upon his bond,
but will forfeit his Office for failure to
perform the duties of his office. 1t
provides where he shall deposit the
moneys of deceased and said estate, and
that it shall only be drawn out upon
order of court; and then in addition.
he is entirely disinterested, and will
surely care for the interests of all con-
cerned in the probate of this estate.
Counsel for the public administrator
will prepare an order accordingly. ap-
pointing the said George M. Hubertv,
as public administrator, administrator
of the estate of said Frank Frates.
deceased.
R. G. RUST, Judge.
The court thereupon ordered that
letters of administration be issued to
Geo. M. Huberty as public admins
traitor, and that w. A. Bennetts, special
administrator, forthwith give into
the possession of said Geo. M. Hub
erty all property now in his possession
or under his control belonging to said
estate; and that said Bennetts file his
final account within ten days.
We are informed that an appeal from
this order will be taken by the guard
ian to the supreme court.