In the Matter of the Estate of HENREY FREY, Deceased, 52 Cal. 658

I. Jacob Frey was never appointed executor by the Probate Court. (Sec. 1349, Code Civil Procedure.) II. The letters testamentary issued to Jacob Frey, March 11th, 1874, was and is void, because issued without Jacob Frey having been appointed executor by the Court. (Sec. 1349, Code Civil Procedure.) III.

Rosine Frey, as the surviving wife of the said testator, was entitled to have distributed to her one-half of the whole estate unaffected by the will of the deceased. “ Upon the death of the husband one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband.” * * * (Sec. 1402, Civil Code; Estate Silvey, 42 Cal. 212.) And to one-half of the property subject to testamentary disposition under the will of the testator. (Beard v. Knox, 5 Cal. 252.) Ourtis & Clunie, for Respondent. 1.

Jacob Frey was.appointed executor by the will of Henry Frey, and letters testamentary were issued to him. The mistake in the name in the order appointing him executor is but slight, and the Court will not regard trifles. (Code Civil Procedure, sec. 475.) If advantage could be taken of the error in the order appointing executor, it must be by appeal from the order taken within sixty days from its entry. (Code Civil Procedure, secs. 939, 969,1715.) 2.

The executor is entitled to charge for his expenses in attempting to administer. (Code Civil Procedure, sec. 1616; Williams on Ex. 1961; Estate of Simmons, 43 Cal. 551.) The compensation allowed to executors is discretionary with the Probate Court, and will not be interfered with by the Court of Appeals. (Ramsey v. Ramsey, 4 Mon. 151. 3. Though a testator has no power to dispose of but half of the common property, still if he attempts it his wife must elect; she cannot take her half under the law and then half of the balance under the will. (Morris v.

Bowman et al. 29 Cal. 337, and cases cited; 1 Jarman on Wills, 374; 2 Story’s Equity, 465 ; Equity Jurisprudence, 465; Reaves & Wife v. Garrett’s Ad. 34 Ala. 558.) By the Court : The letters testamentary issued to Jacob Frey were unauthorized and void, for the reason that the order directed the letters to be issued to the petitioner, Joseph Frey. The letters testamentary issued to Jacob Frey being void, he was not entitled to commissions, fees, or charges as an executor in the settlement of the estate of said testator.

If the property in this case was common property, (on the argument it was so conceded) the testator had power to make a testamentary disposition of only one-half thereof, subject to the payment of debts, and the remaining half would vest in the surviving wife of the testator. The surviving wife, by applying for and receiving letters testamentary, and by claiming and taking under the will, will not be deemed to have renounced her rights to the one-half of the property as common property. Orders reversed and cause remanded for further proceedings in accordance with this opinion.