Estate of Myers

CHIPMAN, P. J.

It appeared that the heirs at law of deceased are three daughters, Kate Roche, Sophia Drier and Ann Baker; Thomas M. Roche is a grandson of deceased, but is not entitled to succeed to any portion of the personal estate of deceased; he was nominated, in writing, by Kate Roche and Sophia Drier, each of whom is competent to act as ad

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ministratrix, and their written request was filed herein with the petition of said Thomas M. Eoehe, asking that letters he issued to him.

Ann Baker was competent to act as administratrix and she also prayed for letters, the petitions being heard together. The court held that it had no discretion, and that Ann Baker was entitled “as a matter of strict legal right” to be appointed administratrix, and the judge so ordered.

Section 1365, Code of Civil Procedure, fixes the order in which certain classes of persons are entitled to administer, in which order the court must make the appointment. The order is as follows: “1. The surviving husband or wife, or some competent persons whom he or she may request to have appointed; 2. The children.” The other eight classes need not be stated.

Section 1366, Code of Civil Procedure, provides that “of several persons claiming and equally entitled to administer, males must be preferred to females,” etc., but all the claimants here being daughters of the deceased and equally entitled, no question arises under that section, for it will not be claimed that the nominee of two of the daughters has any greater right, because he is a man, than the daughters themselves have.

Section 1367 of the same code provides: “When there are several persons equally entitled to the administration, the court may grant letters to one or more of them, ’ ’ etc.

Drawn into the discussion are section 1368, Code of Civil Procedure, which provides that where any-person entitled to administer is a minor, “letters must be granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court”; and section 1379, Code of Civil Procedure, which provides that “Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court.”