In re Barton

By the Court : It is provided by sec. 1365, Code of Civil Procedure, that “ administration of the estate of a person dying intestate must he granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order,” etc. The decedent left a last will and testament by which he disposed of all of his property, and this will has been admitted to probate. The Court found that Thomas Perdeu, one of the devisees, and William R. Rowland are fit and competent persons to serve as administrators with the will annexed of the estate of the decedent; but was of the opinion that the [540] Public Administrator was entitled to letters of administration,, as a matter of right—no person named in sec. 136.5 prior to the Public Administrator having petitioned for letters. The correctness of the determination of the Probate Court depends upon the question whether a decedent who left an instrument which is entitled to probate as his last will and testament can be held, within the meaning of sec. 1365, to have died intestate. It is said in the notes to 1 Eedfield on Wills, 5, that the opinion that the naming of an executor was indispensable to the validity of a will “ has long since been abandoned in England, and never obtained in the United States.” Many documents which omitted to name an executor have been admitted to probate in the Courts of this State, and we are satisfied that in this State the naming of an executor is not essential to the-validity of a will. A decedent whose will is entitled to be admitted to probate did not die intestate, and therefore sec. 1365 is not applicable to this case, and the Probate Court, in granting letters of administration with the will annexed, is not limited to the order therein prescribed. Order reversed, and cause remanded for further proceedings, in accordance with this opinion.