In Re the Estate of Dow

COOPER,C.

—Appeal from order appointing administrator. William Dow died intestate, in San Mateo County, in 1882, being a resident of said county at the time of his death, and leaving estate therein. He left, surviving him, his wife, Maggie J. Dow, and a son, James J. Dow. Before any steps were taken to administer upon the estate, the widow married one Sullivan. Petitions were filed for letters by the son, James J., and by James Crow,—the latter at the written request of said Maggie J. Sullivan. An order was made appointing Crow administrator and denying the petition of Dow. The question is as to whether or not the surviving wife, after her marriage with Sullivan, had the right to have Crow appointed at her written request. It is provided in section 1365 of the Code of Civil Procedure, that administration of the estate of a person

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dying intestate must be granted to some one or more of the persons mentioned therein, and that of the persons mentioned they are entitled in the following order: —

“1. The surviving husband or wife, or some competent per- . son whom he or she may request to have appointed.”

It has been held, under, the above section, that the surviving wife, although incompetent to serve on account of non-residence, is nevertheless, entitled to nominate a suitable person for administrator.

(Estate of Cotter,

54 Cal. 215.)

It was held in the above case that the written request was a right given by statute, and that it was the duty of the court to appoint the person so requested.

In the case at bar, Mrs. Sullivan was entitled to be appointed, and to administer upon the estate, although a married woman. (Code Civ. Proc., sec. 1370.) The policy of the law is to give the right to the surviving husband or wife, not only to administer, but to have a person appointed upon request. So fully does the law carry out this policy, that if letters have been granted to a child, father, brother, or sister of the intestate, the surviving husband or wife may assert his prior right and obtain letters of administration and have the prior letters revoked. (Code Civ. Proc., sec. 1386.)