Estate of St. John

WASTE, C. J.

The sole question presented upon this appeal is whether the court below erred in issuing letters of administration to the public administrator to the exclusion of the nominee of the children of the decedent. Respondent public administrator contends that it was proper for the probate court, in the exercise of its discretion, to prefer him because of the adverse interest of the children growing out of their claim, evidenced by an action pending at the time of the appointment, that all of the property of the estate represented the separate property of decedent’s first wife and passed to them as her heirs to the exclusion of decedent’s second wife and the heirs of the latter. It was also claimed by the children, and alleged in the action referred to, that decedent had promised his first wife that he would keep the property intact until the youngest of their three children had reached the age of twenty-one years, at which time he would divide it among said children.

We find no error in the lower court’s ruling. Under section 1374 of the Code of Civil Procedure as the same existed until the adoption of the Probate Code in 1931, the only ground of objection to the personal qualifications of an applicant for letters of administration was incompetency. An adverse interest such as is here involved did not serve to preclude the issuance of letters to the one so interested.

(Estate of Carmody,

88 Cal. 616 [26 Pac. 373];

Estate of Brundage,

141 Cal. 538 [75 Pac.

175]; Estate of Randall,

177 Cal. 363 [170 Pac. 835]; 11A Cal. Jur. 263, sec. 177.) Therefore, if the repealed section of the Code of Civil Procedure- were still in force and applicable here, the children of the decedent would have to be preferred to the public administrator. However, with the adoption of the Probate Code, section 442 thereof, the counterpart of the repealed section 1374, was made to provide that “Any person interested may contest the petition [for letters] by filing written grounds of opposition thereto, based on the incompetency of the applicant

or for other cause,

or may assert his own right to letters ...”

The italicized phrase did not appear in the repealed section 1374. In our opinion, it was inserted in the quoted section of the Probate Code to permit the probate court, in the