18 Cal. 499, Irwin v. Scriber

Citation:18 Cal. 499
Opinion Judge:BALDWIN, Judge
Party Name:IRWIN, Administrator of the Estate of Marquito Soto, Deceased, v. SCRIBER and WIFE
Attorney:Harrison & Estee, for Appellant.
Judge Panel:JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
Case Date:July 01, 1861
Court:Supreme Court of California

Page 499

18 Cal. 499

IRWIN, Administrator of the Estate of Marquito Soto, Deceased,



Supreme Court of California

July, 1861

Page 500

[Syllabus Material]

Page 501

[Syllabus Material]

Page 502

Appeal from the Fifteenth District.

Marquito Soto died in the city of Sacramento in November, 1860, leaving among her assets a note made by respondents, Scriber and wife, for $ 1,000, and secured by mortgage on certain real estate located in the town of Oroville, Butte county.

On the ___ day of January, 1861, Jared Irwin, Public Administrator of the city and county of Sacramento, and administrator of the estate of deceased, commenced an action in the District Court of the Fifteenth District, Butte county, to foreclose such mortgage, setting forth the following facts, to wit:

That on the ___ day of September, a. d. 1859, he was elected Public Administrator of the city and county of Sacramento; that he executed and filed his bond, approved by the County Judge, and that he was thereupon duly qualified and entered upon the duties of his office, and that he has been ever since, and is now, acting as such administrator. He further averred, that on the thirtieth day of November, 1860, Marquito Soto died intestate, in the city of Sacramento, without leaving any known heirs entitled by law to administer upon the estate. That after petition, notice, proof of death, and residence within that county, the Probate Court thereof, on the nineteenth day of December, 1860, ordered letters of administration to issue to him upon said estate, whereby he took possession of and became administrator of the same. Plaintiff then made the usual averments in suits of that character, praying for decree for sale of property, etc. To which complaint defendants demurred and answered; demurrer overruled by the Court.

Defendants admit the making of the note and mortgage, and that they are indebted in the sum of $ 1,000, but deny that Irwin is the legally appointed administrator of the estate. They deny that deceased was a resident of Sacramento city at the time of her death, and aver that she was a resident of Oroville, Butte county, and that one E. Parker, Public Administrator of that county, is the only proper person to administer on her estate.

Plaintiff demurred to defendants' answer, which was overruled by the Court, plaintiff excepting.

When the cause came on for trial, plaintiff moved to strike out all that portion of defendants' answer which set forth that " E. Parker, of Butte county, was the legal administrator of deceased's estate; also, all that portion of defendants' answer which sets up as a defense that deceased was not a resident of Sacramento county at the time of her death, for the reason that the Court had not jurisdiction to try the questions therein raised, and that the same was irrelevant."

The Court overruled the motion, to which ruling plaintiff excepted.

The Court then held that the defendants' answer was in the nature of a plea in abatement, and that plaintiff occupied the affirmative of that issue, plaintiff excepting.

The Court, sitting as a jury, proceeded to try the question raised by defendants' plea in abatement.

Plaintiff introduced an order of the Probate Court of Sacramento county, granting letters of administration on the estate to him; also, original letters and certificate of the Clerk of that Court that the same had not been revoked; also, depositions of two witnesses showing that deceased was a resident of Sacramento at the time of her death.

Defendants then introduced several witnesses, showing that deceased had been residing at Oroville, Butte county, until within a few weeks of her death.

The cause was then submitted on the plea in abatement, and the Court found: " That Marquito Soto, deceased, was, at the time of her death, a resident of Oroville, Butte county, and that plaintiff, as Public Administrator of Sacramento county, is not entitled to administer upon her estate." Case dismissed; plaintiff appeals.


Harrison & Estee, for Appellant.

I. Under our practice, letters of administration are conclusive against all the world until the order granting them is either reversed on appeal or revoked on application made in the Probate Court of the county where the letters were issued (unless void on their face.) The Probate Court alone has authority to grant letters testamentary and of administration in this State; and in passing upon the facts...

To continue reading