In re Taylor's Estate

• Decision Date: 02 July 1941
• Docket Number: 3338.
• Citation: 114 P.2d 1086,61 Nev. 68
• Parties: In re TAYLOR'S ESTATE. TAYLOR v. TAYLOR.
• Court: Nevada Supreme Court

114 P.2d 1086

61 Nev. 68

In re TAYLOR'S ESTATE. TAYLOR v. TAYLOR.

No. 3338.

Supreme Court of Nevada

July 2, 1941

Appeal from District Court, Second District, Washoe County; B. F Curler, Judge.

In the matter of the estate of Joseph A. Taylor, deceased, wherein Mary Taylor and Hazel A. Taylor both filed petitions to be appointed administratrix. From an order appointing the last-named petitioner administratrix, the first-named petitioner appeals.

Reversed and remanded, with instructions.

John Davidson and H. R. Cooke, both of Reno, for appellant.

A. J Maestretti and Harold O. Taber, both of Reno, for respondent.

ORR Justice.

Joseph A. Taylor died intestate, leaving an estate of the value of approximately $5,000. The respondent, Hazel A. Taylor, is the divorced wife of said deceased. Shirley May Taylor, a minor daughter, was the only issue of the marriage, and by provisions of the divorce decree the custody of the child was awarded to the said Hazel A. Taylor. The said Hazel A. Taylor was appointed special administratrix of the said estate, and was also appointed guardian of the person and estate of the said infant child. Mary Taylor, sister of the deceased and appellant herein, as did Hazel A. Taylor, petitioned the lower court to be appointed administratrix of the estate of said deceased. The respondent stated in her petition, inter alia, that if she should be appointed guardian of said minor she would be entitled to letters of administration upon the estate in preference to any other person, and at the time of the hearing of her petition she had been appointed such guardian. The appellant based her right to appointment by reason of her relationship to deceased, namely, that of a sister.

The petition of respondent was heard on January 22, 1941, and on January 27, 1941, appellant's petition for letters came on regularly for hearing. On January 20, 1941, Mary Taylor filed objections to the petition of Hazel A. Taylor, on the grounds: First, that the petition of Hazel A. Taylor did not state facts sufficient to show she was one of the persons designated by law as having a prior right over objector Mary Taylor; second, that the facts stated in the said petition of Hazel A. Taylor showed that objector Mary Taylor, as the surviving sister of said deceased, had a prior and preferred right over said Hazel A. Taylor; third, that said Mary Taylor had filed her petition praying for letters; fourth, that the right of Hazel A. Taylor to have letters issued to her was subordinate to the right of Mary Taylor, sister of the deceased.

On January 13, 1941, Hazel A. Taylor filed objections to the petition of Mary Taylor, as follows: First, that Mary Taylor was a resident of California; second, that the minor child was a resident of Washoe County; third, that the said Hazel A. Taylor had filed a petition for letters of guardianship of the person and estate of said minor; fourth, that said Hazel A. Taylor was the mother of said minor, residing in Reno, and by the terms of the divorce decree had the custody and control of said minor child; fifth, that said Hazel A. Taylor was, on January 3, 1941, appointed special administratrix of the estate of said deceased; sixth, that said Hazel A. Taylor had filed a petition for letters of administration "based upon her relationship to the minor, who is the legal heir of said deceased"; seventh, that Mary Taylor, as sister of said deceased, was "subordinate to the right of said minor" for letters of administration, as provided by the terms of the statute of this state.

The petition of Hazel A. Taylor came on for hearing first, and at the conclusion of the hearing appellant promptly moved for an order denying the petition of Hazel A. Taylor, "on the ground that it appeared from the record that the right of Hazel A. Taylor, the divorced wife of deceased, was subordinate and junior to the right of Mary Taylor". The matter was postponed until January 27, 1941. The hearing being resumed on said date, Mary Taylor testified that she was employed at San Francisco at a salary of $85 per month, and had been previously employed for nine and a half years; that she was the only living near relative of the deceased, except the minor child; that she heard of her brother's death, came to Reno and selected a funeral service priced at $1,250; that she thought the value of the estate to be somewhere in the neighborhood of $5,000, but that she expected to and intended to use as much of her own funds as would be necessary to make up the difference between what the court would allow and the actual cost of the funeral service; however, after a conference with Hazel A. Taylor, who expressed the opinion that the service selected was too expensive, Mary Taylor selected a less expensive one, costing something over $900, $100 of which was payable by the veterans' association. Mary Taylor also testified that she knew the amount of funeral expenses chargeable against the estate was a matter which the court would pass upon and control.

The Nevada statute fixing the preference as to who is entitled to letters of administration is Section 9637, N.C.L. Under the classifications made by the statute, Mary Taylor, sister of the deceased, was in the fifth class, and Hazel A. Taylor, his divorced wife, was in the eleventh class. It is the law that the provisions of the statute relative to the priorities of appointment are mandatory, and the court has no discretion but to appoint one preferred by statute, if otherwise competent. 23 C.J. 1033, sec. 92, note 84; In re Bauquier's Estate, 88 Cal. 302, 26 P. 178, 532; In re Nickals' Estate, 21 Nev. 462, 34 P. 250; In re Webb's Estate, 90 Colo. 470, 10 P.2d 947.

However, respondent Hazel A. Taylor asserts that she has a prior right to letters of administration over appellant, sister of deceased, because she is the guardian of the estate of Shirley May Taylor, the infant child of said deceased, the contention being that while the child is not entitled to exercise the duties of an administrator, because she is under the age of majority, even in the absence of a statute so providing her guardian should represent her. We do not agree. The respondent's status as guardian of the child confers upon her no legal right to letters. Section 9637, N.C.L., fixes the classifications and priorities. Section 57 of the Act to Regulate Settlement of the Estates of Deceased Persons, c. 55, approved November 29, 1861, which was in force until March 23, 1897, made provision that when persons entitled to letters were minors, letters should be issued to the guardian of said minors. This act was expressly repealed by the Act of March 23, 1897, being Section 9882, N.C.L., which said section eliminates the provision relative to the right of a guardian to be appointed. The Act of March 23, 1897, was almost entirely taken from California. The California act contained a provision as follows: "If any person entitled to administration is a minor or an incompetent person, letters must be granted to his or her guardian ***". Such is the law of California today, and was the law when the Nevada Legislature adopted practically the entire Probate Code of California. But the fore-going, Section 1368 of the California Code of Civil Procedure, was omitted, and it must have been intentional, the idea being that the right of a guardian to be appointed should no longer obtain in this state.

Respondent maintains that said Section 57, entitling a guardian to letters, was merely declaratory of the common law, and she calls attention to the rule that the repeal of a statute which is declaratory of the common law does not necessarily effect an abolition of the common law, the common law, so far as it is not repugnant, being the rule of decision in this state, hence the repeal of the express statute leaves the common-law rule still in effect. We conclude that, the Legislature having specified the persons entitled to letters with their priorities, and a guardian not being named in the statute, the axiom "expressio unius est exclusio alterius" applies. And, again, the Act of March 23, 1897, appears to be a revision of the whole subject of the settlement of estates of deceased persons and appointment of legal representatives, and being such a revision, any and all common law of which the statute of 1861 was declaratory was thereby repealed. See Gill v. Goldfield Consol. Mines Co., 43 Nev. 1, 176 P. 784, 184 P. 309; Thorpe v. Schooling, 7 Nev. 15; State v. Lee, 28 Nev. 380, 82 P. 229; State v. Rogers, 10 Nev. 319. See, also: 59 C.J. 922, note 57; Boston Ice Co. v. Boston, etc., R. Co., 77 N.H. 6, 86 A. 356, 45 L.R.A., N.S., 845, Ann.Cas.1914A, 1090; Aetna...