
    Matter of the Probate of the Last Will and Testament of Jane Davis, Deceased.
    
      (Surrogate’s Court, Saratoga County,
    
    
      November, 1904.)
    Will Simply Appointing an Executor—It is Entitled to Probate—A Public Administrator of Another State May Oppose the Probate.
    A will which makes no disposition of the teestator’s estate, but simply appoints an executor thereof, is entitled to probate.
    A public administrator, appointed in Fresno county, California, administrator of the assets of the deceased located in that county, is entitled to oppose the probate of such a will.
    
      Application of Robert D. Chittenden, public administrator of Eresno county, California, to whom letters of administration have been issued upon the estate of the decedent in that county, for leave to appear and oppose the probate of the will.
    John H. Burke and E. H. Peters, for administrator in support of application; William B. Lee and Herbert J. Menzie,. for Mary Gardiner Stone and others; Halstead H. Frost, Jr., for Samuel D. French and others; William S. Cogswell, for Hiram Camp Davis and others.
   Lester, S.

Robert D. Chittenden, the public administrator, who was appointed administrator of the goods, etc., of the deceased in the county of Eresno in the 'State of California, has. appeared and asks leave to oppose the probate of the will propounded as the last will and testament of the deceased. The proponents object that the administrator is not interested and has no right to appear and oppose the probate. The section under which the administrator claims this right provides that any person who is interested in sustaining or defeating the will may appear and, at his election, support or oppose the application.

A will usually accomplishes the double purpose of disposing-of the estate of the testator and designating the person who is to administer the estate and carry the provisions of the will into effect. A paper which makes no disposition of the testator’s estate, but which nominates an executor is, however, entitled to be admitted to probate and the language of this section would seem to give the right to one who would otherwise-be entitled to administer upon the estate of the deceased to-appear and oppose the probate of such a will.

An administrator in the State of California is presumably lawfully in possession of such assets of the deceased as were situated in his county. Anything that affects his right to administer these assets or the ultimate disposition that is to he made of them is a matter in which he is interested in his capacity of administrator. As a trustee he is interested in whatever affects the trust estate. I am of the opinion that he has such an interest as entitles him to appear in the proceedings for the probate of the present will and oppose it.

In Gombault v. Public Administrator, 4 Bred. 226, the public administrator of Hew York was permitted to come in and oppose the will, though no letters of administration had been issued to him on the decedent’s estate.

In Matter of Greeley’s Will, 15 Abb. (N. S.) 393, it was held that the executors under a will might oppose the probate of a later will, although the parties beneficially interested under the earlier will had released their interest.

These cases seem to indicate that the right to administer the estate is a sufficient interest in this 'State to entitle the person in whom it is vested to contest the probate of a will.

I am referred to In re Hickman, 101 Cal. 609, in which it was held that the public administrator in that State had not such an interest as would entitle him to appear and oppose the probate of a will. In view of the cases I have mentioned it may be doubted if this California case is in harmony with the policy of the probate practice of this State; but that case differs from the present'. In that case the interest of the public administrator was simply his right to letters of administration upon the estate of the decedent. In the present case letters of administrator upon the decedent’s estate have been issued to the public administrator and he comes before the court, riot as one seeking to enforce his right to administer, but as one to whom letters of administration have in fact issued and who is clothed with the power and authority of an administrator of that part of the decedent’s estate in his county. He is not seeking to be made a trustee, but he is a trustee coming to vindicate his right and authority over the trust estate.

An order may be entered, making the administrator a party to the several proceedings for the probate of this will and permitting him to file such answers and objections to the probate as he may be advised.

Decreed accordingly.  