In re Estate of Damke

The public administrator of the county of Sacramento appeals from an order of the superior court of

It is asked that this appeal be dismissed because the notice of appeal is entitled “ In the Superior Court of the County of Sacramento,” and also by reason of other defects appearing upon its face. These objections are too technical, for the defects are unsubstantial. The notice recites that the appeal is taken from an order and decree made and entered the second day of August, 1900, directing letters of administration to issue to C. C. Franklin, public administrator of the county of San Joaquin. This order and decree was the only one made upon that day, or any other day, appointing C. C. Franklin, public administrator of the county of San Joaquin, administrator of the estate of the deceased. It is perfectly evident that respondent’s attorneys were not misled by the defects appearing upon the face of the notice, and, in addition to this, subsequent to the service of the notice a bill of exceptions was prepared and settled, to be used upon appeal from the order appointing Franklin administrator, and no suggestion was ever made that the aforesaid notice was defective in substance. Throughout the proceedings the notice has been treated as sufficient, and acted upon, and it is now too late to make the objections here made for the first time.

It is next claimed, in support of the motion to dismiss, that the appellant is not a party aggrieved, and hence has no right of appeal. Appellant claims the right to administer upon the estate of Damke, deceased, and under these circumstances is entitled to take this appeal. (Estate of Healy, 122 Cal. 162 .) If Damke was in fact a resident of Sacramento County at the time of his death, it was not only the right, but the duty, of the public administrator of Sacramento County to appear in the court of San Joaquin County and contest Franklin’s right to letters of administration. And if he had the right to contest the issuance of letters of administration to Franklin, he had the right to appeal from the decree entered against him. The fact that he claims the right to administer in Sacramento

Appellant, by an order of the superior court of Sacramento .County, made July 12, 1900, was appointed special administrator of the estate of the aforesaid deceased. Upon July 21, 1900, Franklin filed his petition in the superior court of the county of San Joaquin, asking for general letters of administration upon the estate of said deceased. Upon July 23d, appellant filed his petition in the superior court of the county of Sacramento, asking for general letters of administration upon said estate. Upon August 2d, general letters of administration were issued to Franklin in the superior court of the county of San Joaquin, appellant’s written opposition thereto being overruled, and it is from this order that the present appeal is taken. Thereafter, general letters of administration were issued to appellant in the superior court of the county of Sacramento. It is now insisted upon the part of appellant, that the superior court of the county of Sacramento having made an order appointing him special administrator of the estate of Damke, deceased, prior to the filing of Franklin’s petition for letters in the superior court of San Joaquin County, therefore that court was deprived of jurisdiction to hear his petition. The court has concluded that appellant’s position in this regard is not well taken. -By the appointment of a special administrator of an estate, the court making the order may be said to have only a limited jurisdiction over the estate. It has jurisdiction alone for the special purposes of that character of administration. By the proceeding which resulted in the appointment of the special administrator, the court gained no jurisdiction to appoint a general administrator. That appointment could only be made by a separate and independent proceeding, and the prior proceeding in no degree fed the jurisdiction of the court as to the appointment of a general administrator. If the public administrator of San Joaquin County could not there file in the court a petition to be appointed administrator of the estate of deceased for the reason that a special administrator had already been appointed in Sacramento County, then the subject-matter of this litigation would be in a most peculiar situation, for non constat the public administrator of Sacramento County would ever file a petition for general letters of administration, and thus most serious

Appellant attacks the finding of the trial court, which is to the effect that the deceased, Damke, was a resident of the county of San Joaquin at the time of his death. This court has carefully examined the evidence found in the record, bearing upon the question of residence, and has concluded that it points unerringly to the fact that the residence of Damke, at the time of his death, was in Sacramento County. There is but a small amount of evidence upon the issue.

Damke was a German, without relatives in this state. For ten years immediately prior to his death he was acting as superintendent and manager of a large ranch belonging to Williams and Bixler, which was situated in Sacramento County, at a point called Ryde. Here Damke was furnished a house, in which he lived alone for these ten years. He did his own cooking, and slept there. He had his own bed, dishes, and other furniture there. He had chickens, pigs, and a cow about the place. Indeed, he seemed to live in this house and at this place, if it can ever be said that a person lives in a certain house and at a certain place. If a person may by his acts create a residence for himself, then Damke’s residence was at Ryde. While it may be said that the residence of a person is to be determined by his intentions, still it may also be said that his intentions are to be determined by his acts. The deceased received his papers and his letters at Ryde post-office, situated upon the ranch; and many of his neighbors testified that he lived at this place continually for the past ten years prior to his death, only being absent a day or two a few times each year. Against this evidence, a witness testified that, prior to the aforesaid ten years, and for thirteen years prior thereto, Damke was an ordinary laboring-man, working wherever he could obtain work, and when not working he stayed at the hotel of the witness in the city of Stockton,

The court concludes that there is no substantial conflict in the evidence upon the issue of residence, and for the foregoing reasons the order and decree is reversed and the cause remanded.

Van Dyke, J., and Harrison, J., concurred.