Amador ledger., 1910-02-11
Decision in Serine
Administration Contest

California, in and for the county OF.
Amador
In the matter of the estate of Sarah A.
Serine, deceased.
This is a contest for letters of admin
istration with the will annexed of the
estate of decedent
Sarah A. Serne died on Oct. 10, 1909,
a resident of the county of Amador,
leaving surviving as her only heirs,
her two daughters: Mrs Carrie Tarr of
Idaho, ard Mrs Nellie Werley of
Alameda county, this state.
She left a last will bearing date,
July %, 1908, with codicil thereto
dated Oct. 8, 1909. BY the terms of
said will and codicil she bequeathed
certain property to her grandchild, Ola
G. Werley, who is the minor child of
said Nellie Werley.
Decedent's said daughter Carrie Tarr
was named in the will as eXecutriX, but
she has declined to act as such and has
in writing requested that letters of ad-
ministration with the will annexed be
issued to the petitioner, H. E. Potter,
who is the public administrator OF the
county.
John Fl. Werley who is the guardian
of the minor Ola G. Werlev, has con-
tested the petition of Mr. Potter and
filed his own petition praying for the
issuance of letters to himself.
Section 1868 code of civil procedure
provides that if person entitled to ad-
minister is a minor, letters may be
granted to his or her guardian. The
rights therefore of Mr. Werley to letters
will be measured by those that would be
accorded to Ola G. Werley were she of
lawful age and here petitioning for
letters in her own behalf.
Counsel for Mr. Werley have cited
estate of Mclaughlin l03 Cal, page 429
and estate of Engle, ia Cal. page 292,
to uphold the claim of Mr. Werley to
letters Neither of these cases how
ever sustain his position.
All that was decided in estate of
Mclaughlin was that the guardian OF
the son of the decedent, who was the
only heir to the estate, but had been ad'
judged an incompetent person, was
entitled to letters in preference to the
public administrator. The son being
the only heir was by the statue entitled
to letters, it was merely held that the
guardian occupied the same position
that the son would have occupied, had
he not have been adiudged incompetent
to manage his property.
In this case the mother of Ola G.
Werley being living, Ola, 'of course is
not an heir of Mrs Serine, and by the
express provisions of sec. 1865 of the
code of civil procedure relative is not
entitled TO letters (unless he be an heir)
in preference to the public admins
traitor,
In said estate of Engle cited by coun-
sci, letters were issued to one Griffith,
who was not an heir but was entitled to
tenth of the estate as devisee, and
the petition of the public administrator
denied, but that was foreign will and
the case was decided upon authority of
estate of Bergin 100 Cal. 376, where it
was pointed out that the provisions re-
lating to the appointment Of an admins
traitor with the will annexed of foreign
will were entirely different from that re-
lating to domestic will, and that letters
upon foreign could be granted only to
a person interested in the will, and in
estate of Coan l32 Cal. 403 both the
cases of estate of Engle and estate of
Bergin were referred to and il was
shown that the public administrator was
never entitled to letters upon foreign
will because the public administrator is
not a person interested in the will.
Estate of Wakefield So Cal. page no
seems to present features much like the
case at bar.
Naomi Wakefield and her mother
persisted in the wreck of the steamer
Rio Janeiro in the harbor of San Fran
cisco Nanomi died first. In a contest
for letters upon the estate of Naomi be-
tween the nominee of her two brothers
(who became entitled TO the entire es-
tate of Naomi through the death of the
mother and the public administrator, )the
supreme court held that the nominee of
the brothers would be entitled to letters,
If the brothers were entitled, but as at
the moment of Naomi's death, her
mother was living, her mother became
Naomi's heir, and that letters should be