Estate of Mintaberry

SLOANE, J.

This is an appeal from an order denying the petition of Edward Bickmore for revocation of letters of administration issued to W. M. Griffin, public administrator of Merced County, in the matter of the estate of Juan Mintaberry, deceased, and praying for issuance of letters to himself.

The petitioner is the nominee of the widow of the decedent, who is a resident of the state of Nevada, and therefore personally disqualified. The application for such change of administrators was made under section 1383 of the Code of Civil Procedure, which provides as follows: “When letters

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of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration, by presenting to the court a petition praying the revocation, and that letters of administration may be issued to him.”

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The trial court in denying the prayer of the petitioner held that this code provision only authorizes any of the relatives named to act through a nominee, when such relative is personally competent to qualify as administrator. Such must be held to be the proper construction of the statute in view of the decision of this court in

Estate of Martin,

163 Cal. 440, [125 Pac. 1055]. In the Martin case revocation was sought by the nominee of a nonresident brother. The court' there says: “The right to obtain such revocation is solely for the benefit of the relative. It is limited by express terms in the first instance to such of the designated relatives as are themselves competent, and the words ‘at the written request of any one of them’ may well be construed as referring solely to those described in the last preceding clause, viz., ‘any one of them who is competent,’ thus giving the competent relative the right to act either directly or through a nominee.” So construing the section this court denied the right of the nominee of the nonresident brother to petition for revocation of letters and to succeed to the administration, under the terms of this section of the code.