In re Estate of Hamilton

         The appointment of a new administrator cannot be made whilst a former administrator is in office. (Haynes v. Meeks , 20 Cal. 310, 311.) A judicial grant of administration was made to Hollub, after due and legal proceedings taken, on July 21st, 1862. That grant was a distinct and independent proceeding in the nature of an action of which the petition was the commencement, and the order making the grant was the judgment, like the proceeding for the sale of the real estate of an intestate. (Spriggs' Estate , 20 Cal. 124.) From that order an appeal lay. (Probate Act, Sec. 297.) Unless appealed from, or properly revoked, it is conclusive. It cannot be attacked collaterally. (Garwood v. Garwood , 29 Cal. 520.) Although it does not appear affirmatively from the record that Hollub took the oath or that letters were issued to him, yet these will bepresumed when attempted to be questioned collaterally. What ought to have been done is conclusively presumed to have been done. Nor, in this collateral proceeding, was it permissible to show by evidence aliunde that letters did not issue. The Probate Court is a Court of superior jurisdiction, and if the record is silent, everything will be presumed to have been rightly done. (Hahn v. Kelly, ante 391; Stats. 1863, p. 339, Sec 46. See, also, Magraw v. McGlynn , 26 Cal. 430; Boyd v. Blankman , 29 Cal. 42; Lucas v. Todd , 28 Cal. 182; Elden v. Keddell, 8 East, 187; Ramsbottom v. Buckhurst, 2 M. & S. 567; Davis v. Williams, 13 East, 232; 2 Williams on Executors, 4th Am. ed., * 1,611.) The grant of administration having been made, and Hollub having acted, and the Court having recognized him in his official capacity, whatever was necessary to authorize him to act will be presumed, when raised collaterally. The maxim applies-- Probatis extremis, proesumuntur media. ( Pratt v. McCullough, 1 McLean, 73.)

         JUDGES: Sanderson, J.

         OPINION

          SANDERSON, Judge

         A Public Administrator of the City and County of San Francisco does not, by virtue of his office, acquire the right to administer upon any particular estate. Like all other persons to whom letters of administration may be granted, as provided in the fifty-second section of the Probate Act, he can take upon himself the duties of an administrator of a given estate only by virtue of a special grant from the Probate Court, made upon a petition filed in the matter of such estate. (Statutes 1860, p. 105; Beckett v. Selover , 7 Cal. 216; Rogers v. Hoberlein , 11 Cal. 128.)

         Such being the rule, the only further question presented is: Does the record show a grant of administration to Hollub? If so--there being no pretense that the grant was subsequently revoked--the subsequent appointment of Brumagim was void, for it has been expressly held that " the appointment of a new administrator can no more be made whilst a former administrator is in office than an appointment can be made in the first instance until the death of an intestate." (Haynes v. Meeks , 20 Cal. 310, 311.) But if Hollub never obtained a grant of administration from the Probate Court, there is no pretense but that the appointment of Brumagim was regular and valid.

         As to the alleged appointment of Hollub, the case shows only that he filed a petition asking for it; that legal notice of his application was given; that, at the hearing the usual order, as provided in section sixty-two of the Probate Act, directing that letters of administration be issued to him upon his qualifying, as provided in section seventy-two, was made; that on the same day the usual order appointing appraisers was made; that subsequently an order directing the usual notice to creditors to be published was also made; that the notice was in fact published according to law, and that one Patridge subsequently presented a claim against the estate, which was allowed by Hollub, and also approved by the Probate Judge. With this the showing stops. No letters of administration with the oath of office attached is shown, nor the record thereof, which the statute required to be made. (Sec. 72.) On the contrary, the affidavit of Hollub himself shows that to the best of his knowledge he never took the oath of office, and that no letters were ever issued to him.

         Does this show a grant of administration to Hollub? Clearly not. The order directing letters to be issued to him, upon his qualifying in the manner provided in section seventy-two, was only one step towards his appointment. It did not, of itself, vest him with the office. His appointment was in fieri, until he had qualified, and received his letters. (Sec. 72.) The order, as the statute intends all such orders shall be, was conditional, and did not take effect, because the condition was never complied with. The order of the Court, in such cases, does not, of itself, under our statute, constitute the grant of administration, and a certified copy as evidence does not, as claimed by counsel for the respondent, establish the official capacity of an administrator in a collateral proceeding. Under our statute an administrator would have to establish his official character, if denied, by the production of his letters with the oath of office annexed, or of a certified copy of the record thereof, which the statute requires to be made. (Sec. 72.) The mode of procedure provided by our statute, differs from that disclosed in the cases of Elden v. Keddell, 8 East, 187, and Davis v. Williams, 13 East, 232, upon which respondent relies. In each of these cases, the order of the Court recited, that the Administraton had been first sworn to duly administer.

         Order reversed, and cause remanded for further proceedings.