Department of Institutions v. Katz

148 P.2d 396, 64 Cal. App. 2d 76, 1944 Cal. App. LEXIS 1024

• Court: California Court of Appeal
• Decided: April 26, 1944
• Docket: Civ. No. 12575
• Status: Published

Opinions

WARD, J.

The Department of Institutions appeals from an order of the probate court appointing the Public Administrator of the City and County of San Francisco administrator of the estate of Marcus Henry, deceased. It is the contention of appellant that, as a matter of law, it was entitled to letters of administration on such estate.

The facts are not in dispute and are as follows: Marcus Henry died intestate on November 24, 1942, at the Stockton State Hospital. At that time he was under commitment to the Department of Institutions, having been committed in December, 1941. At the time of his death he was a resident of San Francisco. Both the Department of Institutions and the Public Administrator applied for letters of administration.

The trial court found that all of the allegations of the petition of the Public Administrator are true. The petition alleged “That the value and character of the estate of said deceased as far as known to your petitioner are unknown; That the names, ages and places of residence of the heirs at law and next of kin of said deceased are unknown; That your petitioner is informed and believes, and therefore alleges, said deceased died intestate.” On the above facts the trial court further found “that the right to administer the estate of said decedent of the Department of Institutions, if any, is subject to and subordinate to the right and priority of said Public Administrator to administer said estate.”

For a great many years the order of priority in which the probate court must issue letters of administration in the matter of deceased persons’ estates has been fixed by section 422 of the Probate Code and.its predecessor, section 1365 of the Code of Civil Procedure; and the determinative question presented here is whether by the enactment of the 1941 amendment to said section 6660 of the Welfare and Institutions Code the Legislature intended to and did in effect revise or amend section 422 of the Probate Code so as to alter or change the order of priority established thereby for the issuance of letters of administration.

The preferential rights as provided by section 422 must be followed in accordance with the status of the parties. (Estate of Herriott, 219 Cal. 529 [28 P.2d 355]; Estate of Olcese, 210 Cal. 262 [291 P. 193].) Appellant contends that the purport of section 6660 is to create a new classification as though it were designated subsection 7(a), section 422, Probate Code. Any amendment to the provisions of section 422, or any statute that impliedly amends that section, should be specific, otherwise confusion may occur in the interpretation of section 422 and other sections in relation to the appointment of administrators. (See §§420, 423, 425, 426, 427.)

Section 6660«of the Welfare and Institutions Code (Stats. 1941, ch. 920, p. 2506) is not an amendment to chapter 4 of the Probate Code, which includes section 422, but is a distinct statutory provision primarily for the benefit of the insane in state hospitals. It provides that “If a person under commitment to the Department of Institutions dies, leaving any estate, and having no relatives at the time residing within this State, the Department of Institutions shall be entitled to administer the estate and to have letters of administration on the estate issued to the department.” Assuming that it creates competency in the State Department of Institutions to act as administrator, it does not provide for priority over the Public Administrator. The words “shall be entitled to administer the estate, ’ ’ as used in section 6660 should therefore be interpreted as meaning one who is “legally competent” (§ 422, subd. 10); that is, one “entitled to letters” (§422). Immediately following “entitled to letters” appear these words—“in the following order.” The word “shall” (§ 6660) does not add further force or weight; it merely emphasizes the intention of the Legislature that under certain conditions the Department of Institutions is a proper party to act as an administrator.

The term “any . . . person entitled” is general in its designation. It applies to persons in the same or inferior classes. (Estate of Turner, 143 Cal. 438 [77 P. 144].) If in the same class, the selection is discretionary with the court:

An administrator must be a resident of this state. (Prob. Code, §§401, 409, 420.) The words “having no relatives at the time residing within this State” (§ 6660) merely means that under no circumstances would the Department of Institutions be entitled, that is, be eligible for appointment, if decedent had relatives residing in this state at the time of his death. In the event of the appointment of the department, if the decedent had a surviving spouse, parent, etc., or if a relative in this state requested the appointment of a competent person, the letters if issued to the department should be revoked. (Prob. Code, §450.)

A consideration of the history of the legislative enactments further supports the conclusion reached herein. In 1903, Political Code, section 2179, the forerunner of Welfare and Institutions Code, section 6660, provided that the secretary of the state commission in lunacy, in case an “insane person has no guardian, may apply to a court of competent jurisdiction for the appointment of a guardian of the estate of such insane person” if the person committed to a state hospital should be the owner of property, real or personal. The purpose is plain. If the person had sufficient estate it would be the duty of the guardian to pay for necessary expenses of support and maintenance of the inmate at the hospital. (Stats. 1903, ch. 364, p. 506.) In other words, the appointment of the secretary would insure the payment of the state claim.

In 1909, Political Code, section 2179, was amended to provide that “Where an insane person shall die in a state hospital leaving an estate, and having no relatives or guardian, or in case the secretary of the state commission in lunacy shall be such guardian, such secretary may apply for letters' of administration on such estate.” (Stats. 1909, ch. 65, p. 72.) There is no provision in the foregoing amendment that the secretary should be preferred to any other legally competent person.

In 1929 section 2179 was amended as follows: “Where an insane person under commitment to a state hospital shall die leaving any estate, and having no relatives at the time residing within this state, the secretary of the state department of institutions shall be entitled to administer said estate and to have letters of administration on such estate issue to him in preference to any other person.” (Italics added.) (Stats. 1929, ch. 761, p. 1485.) If the deceased inmate had relatives within the state the provision did not apply. For the first time it appears that it was necessary to declare legislatively that the secretary of the commission was a competent person “entitled to administer” and that under such cireumstances he should have preference over any “other person” legally competent. (Prob. Code, §422, subd. (10).) If not legally competent the secretary was not entitled to appointment and therefore could have no “preference.” Stated in another form, before “preference” could be considered it must be shown that the secretary was “entitled” to administer upon proof that he was a “person legally competent” to administer. (Prob. Code, §422, subd. (10).)

In 1937 Political Code, section 2179, was omitted and Welfare and Institutions Code, section 6660, enacted practically in the language of section 2179 as it appeared in 1929, but the provision that preference should be given to the secretary of the State Department of Institutions was eliminated. The continuation of certain clauses in force was merely a substitution for the original act, but the elimination of a portion of the original section is a repeal of that particular provision. (Pierce v. County of Solano, 62 Cal.App. 465 [217 P. 545]; Loew’s Inc. v. Byram, 11 Cal.2d 746 [82 P.2d 1] ; People v. Western Fruit Growers, 22 Cal.2d 494 [140 P.2d 13] ; Evans v. County of San Joaquin, 58 Cal.App.2d 799 [138 P.2d 805]; Greeley v. Suey Sing Benev. Assn., 28 Cal.App.2d 536 [83 P.2d 54].) The revision of the provision indicates that the secretary was still a competent person and therefore eligible to appointment as administrator, but without preference over any other legally competent person referred to in subdivision (10) of section 422, Probate Code. In all subsequent amendments to section 6660 of the Welfare and Institutions Code no reference is made to a preference. That provision was effectively repealed.

Appellant in the following language attempts to justify its position by reference to the provisions of section 6660 as they refer to guardianship proceedings: “. . . it is the legal guardian of many estates, by virtue of appointments by the superior courts, of inmates who are still living. Similarly, it assumes to help and protect the property rights of inmates in innumerable instances where appointments have not been made.

“Thus, for instance, frequently it comes to the Department’s attention that inmates have possible claims and rights in connection with estates and property, and without action and cooperation of the Department of Institutions there is no one to look out for such matters.” The title of chapter 920 (Stats, 1941, § 6660) refers only to the administration of “inmates’ ” estates. The statute provides for the appointment of the Department of Institutions when the incompetent “has no guardian.” If appellant’s contention should be upheld, the department under the wording of the statute —“shall be entitled to administer”—would have priority over the guardian of the estate or the Public Administrator irrespective of any interest as creditor or otherwise in the estate of the deceased.

Referring once more to appellant’s contention that Probate Code, section 422, has been amended to create a subdivision which might be designated 7(a), we are confronted with constitutional prohibitions. Section 24 of Article IV of the California Constitution declares: “. . . No law shall be revised or amended by reference to- its title; but in such case the Act revised or section amended shall be reenacted and published at length as revised or amended. ...” In applying the foregoing constitutional provision it has been held that if a subsequent act leaves in full operation and effect all of the provisions of a prior statute to which the subsequent act relates, the constitutional provision above quoted is not violated by failure to reenact or publish the prior act or section as revised or amended; but that if on the other hand the subsequent act has the effect of altering, revising or changing the operation or the provisions of an existing law or section in any respect, then the failure to observe the constitutional requirement brings such purported revision or amendment within the evils aimed at by the inhibition of the Constitution. (Hellman v. Shoulters, 114 Cal. 136, 150 [44 P. 915, 45 P. 1057]; Matter of Coburn, 165 Cal. 202, 211 [31 P. 352].) The purpose of the constitutional provision is to prevent the title of a subsequent act from being made a cloak or artifice to distract attention from the substance of the act and to protect legislators and the public from being entrapped by misleading titles to bills whereby legislation relating to one subject might be obtained under the title of another. (Heron v. Riley, 209 Cal. 507 [289 P. 160]; People v. French, 61 Cal.App. 275 [214 P. 1003].)

If appellant’s contention is correct—that the purpose and effect of the enactment of the 1941 amendment to section 6660 was to establish a new priority by adding a new subdivision—then it must be held that it is unconstitutional insofar as it attempts to revise the order of priority fixed by section 422 of the Probate Code, for the reason that neither in the enactment of the 1941 amendment to section 6660 nor any of its predecessors was any reference whatever made to a revision of section 422 of the Probate Code or its predecessors, nor has section 422 been reenacted and republished at length as so revised and amended. If, on the other hand, as respondent contends and the trial court held, the 1941 amendment to section 6660 does not revise or alter the order of priority of the issuance of letters of administration but merely grants to the Department of Institutions the right to letters pursuant to classification (10) of section 422 as it now stands, the 1941 amendment to section 6660 is not violative of the constitutional provision above quoted. It has been repeatedly declared that “it must be presumed that the legislature has considered and discussed the constitutionality of all measures passed by it. Certainly it can never be presumed that the legislature intended to pass an unconstitutional act, or do anything unconstitutional or beyond its power. If there is an inference which may be drawn from the act, the effect of which is to render the act unconstitutional, it is to be assumed, in the absence of an express provision to that effect, that such inference was not intended.” (5 Cal.Jur., pp. 629-630.) Therefore, applying the well-settled rules governing the determination of the constitutionality of legislative acts, it cannot be here presumed that the Legislature intended to violate the constitutional provision above quoted.

Incidentally, section 422 was amended subsequent to the last amendment to section 6660 and no reference was made therein to the provisions of section 6660.

We are in full accord with all that is said in the dissenting opinion respecting the imperative duty of courts to abstain from attempting to exercise legislative functions. But after redeclaring these “primordial rules of construction” with moving force and fluency, and with the implied admonition that they should be jealousy guarded and preserved, the dissenting opinion proceeds at once to violate those rules in a pronounced fashion by assuming the exclusive legislative function of revising and rewriting section 422 of the Probate Code, first, by inserting therein an entirely new provision, to be known as classification Ty2 or 7(a), the obvious effect of which would be to establish a new and different order of priority in which probate courts are required to issue letters of administration, and secondly, by modifying the first classification set forth in section 422 by giving priority to the Department of Institutions of the right to letters over the appointee of a surviving non-resident spouse.

It was doubtless within the province of the Legislature, if it saw fit so to do, thus to revise and rewrite section 422 of the Probate Code to conform to the provisions of section 6660 of the Welfare and Institutions Code; but to accomplish that purpose it was necessary to follow the mandatory requirements of section 24 of Article IV of the state Constitution. Therefore, since the Legislature made no attempt at all to revise section 422 in any manner, certainly the courts, under the guise of giving effect to a section of the Welfare and Institutions Code, which makes no reference whatever to any section of the Probate Code, may not assume to exercise the legislative function of revising and revamping a Probate Code section to conform to the needs of the Welfare and Institutions Code. In view of the conclusion reached herein the remaining contention of respondent that the statute is unconstitutional need not be considered.

The only purpose in the passage of section 6660 was to make the department eligible, otherwise it could not act under any of the subdivisions of section 422.

Appellant falls within the provisions of subdivision (10) of section 422, and letters of administration may be granted when “persons having priority fail to claim letters for themselves.” (Prob. Code, §427; Estate of Turner, supra.)

The order appealed from is affirmed.

Knight, J., concurred.