In Re Estate of Crites

HENSHAW, J.

William Crites died testate. Plis will declared all his property to be separate property. It made no provision for the widow, for the reason, as declared, that suitable provision had already been made for her. The principal devisees and legatees under his will were his three children by a former marriage. The will named executors. The executors named forfeited their rights to letters testamentary;

[393]

whereupon two petitions were filed for letters of administration will the will annexed; the one by Alice A. Kane, a child of the deceased, entitled to inherit and a beneficiary under the will; the other by a nominee of the widow, who took nothing under the will. The court granted letters to the nominee of the widow, and the question presented may thus be stated: Is a widow, who takes nothing under a will, entitled to letters of administration with the will annexed, in preference to a child of the testator, who is a devisee and legatee under the will?

Section 1350 of the Code of Civil Procedure (now under amendment of 1907, [Stats. 1907, p. 313], sec. 1350a), provides that if the executors named in a will fail to apply for letters testamentary, letters of administration with the will annexed must be issued as designated and provided in granting letters in case of intestacy. Section 1365 of the Code of Civil Procedure is controlling upon the court’s action. It is the manifest intention of the legislature that section 1365 of the Code of Civil Procedure shall be determinative in a case arising under section 1350a of the Code of Civil Procedure.

(Estate of McDonald,

118 Cal. 277, [50 Pac. 399].) Section 1365, in specifying the order of preference in granting letters, contains the important limiting clause that relatives of the deceased are entitled to administer only when they are entitled to succeed to the personal estate or some portion thereof. That this right of succession is a controlling consideration is well established.

(In re Carmody,

88 Cal. 616, [26 Pac. 373];

In re Davis,

106 Cal. 453, [39 Pac. 756];