Opinion
Department Two
Appeal from an order of the Probate Court of the County of Tehama.
The petition alleged, (besides the jurisdictional facts) that the petitioner was the widow of the deceased, and that letters had been issued at her request to J. W. B. Montgomery, the brother of the deceased, and that at the time of the death of the deceased the said J. W. B. Montgomery was his partner. The prayer of the petition was, that his letters be revoked, and letters issued to the petitioner. A demurrer to the petition was sustained, and the petition dismissed.
COUNSEL:
This is not an application for the revocation of letters, but for the issue of letters. It was so held by the late Supreme Court in its decision filed May 14th, 1879, and on this ground it was held that a writ of error would not lie to the order. The petition states all the jurisdictional facts, and prays that letters be issued to the petitioner. Under § 1365 of the Code of Civil Procedure, the surviving partner must in no case be appointed administrator, and we contend that the Probate Court had no jurisdiction to appoint him. (Cornell v. Gallaher , 16 Cal. 367; Estate of Pacheco , 23 id. 476.)
P. B. Nagle, for Appellant.
I. S. Belcher, and Chapman & Garter, for Respondent.
The judgment is correct, because the petition states that J. W. B. Montgomery was appointed at the request of petitioner. Appellant, therefore, has no statutory right to have respondent's letters revoked. (Estate of Kirtlan , 16 Cal. 162.)
It was adjudicated and determined, upon the hearing of the application of J. W. B. Montgomery for letters, that he was a competent person; and this decision is not subject to review, except upon an appeal from the judgment granting letters to him. (People v. Hagar , 52 Cal. 172.)
JUDGES: Sharpstein, J. Morrison, C. J., and Myrick, J., concurred.
OPINION
SHARPSTEIN, Judge
This is an appeal from an order of the Probate Court refusing to grant a petition for the revocation of letters of administration previously granted and issued to J. W. B. Montgomery.
The Code enumerates the orders from which appeals may be taken to the Supreme Court from Probate Courts. ( Code Civ. Proc. § 969.) An order denying a petition for a revocation of letters of administration is not included in the enumeration. Therefore, no appeal will lie from that order.
Appeal dismissed.