In Re the Estate of Coan

GRAY, C.

— At her death, deceased was a resident of Pennsylvania, and left a will, in which she appointed “ Adam Keller, of Carlisle, Pa.,” as executor. This will was duly probated in said state. As shown by the findings in this matter, J. W. Coan was the son and Mrs. Catherine Eubank was the daughter of deceased. Both of them were residents of California, and both entitled to succeed to a portion of the personal estate of said' deceased under the terms of her said will. Said J. W. Coan petitioned for letters of administration with the will annexed on the mother’s estate. Mrs. Eubank also petitioned for letters to herself or the public administrator, and her three non-resident sisters, also interested in the estate, joined her in this petition. Coan filed an opposition to the appointment of either his sister or the public administrator, and, after hearing all these matters together, the court found that Coan and his sister were equally entitled to letters, and ordered that the will he admitted to probate, and that letters of administration with the will annexed issue to both Coan and his sister, Mrs. Eubank.

Coan appeals from that part of the order in favor of Mrs. Eubank.

Section 1365 of the Code of Civil Procedure places “the children” second in the list of those entitled to administer. If there were no' other provisions concerning the matter, it would seem from the section cited that all the children, when entitled to succeed to the personal estate of the deceased parent, are'equally entitled to letters; but this section is qualified by the next section (sec. 1366), which provides that, “of several persons claiming and equally entitled to administer, males must be preferred to females, and relatives of the whole to the half blood.” The way to prefer one to the other is to appoint the one and exclude the other; the way not to prefer either is to appoint both, as was done in this case. The section quoted is mandatory by its terms, and it is plain that if any effect is to be given to it, a brother and sister are not equally entitled to administer, and cannot, in a contest, be treated as “several persons equally entitled to administer,” and be both appointed, under the provisions of section 1367 of the Code of Civil Procedure.

[403]

The finding that the brother and sister were equally entitled was merely an erroneous conclusion of law. It being found that the one was a son and the other a daughter of the deceased, the order should have directed letters to issue to the son alone, as the court had no discretion to do otherwise, under the terms of the statute.