In Re Estate of Martin

[441]

ANGELLOTTI, J.

The deceased died intestate, and Clarence Martin, a nephew and heir (being a son of a deceased brother of deceased), was appointed administrator of his estate on October 19, 1911. Letters of administration were issued to said Clarence Martin on October 24, 1911. On November 29, 1911, John Martin, a son of Andrew Martin, who is a brother of deceased and one of his heirs, at the written request of his father, filed his petition under section 1383 of the Code of Civil Procedure, for the revocation of such letters of administration issued to Clarence Martin, and asking that he, John Martin, be appointed administrator of said estate. Said Andrew Martin, father of said petitioner, is in all respects competent to serve as administrator, except that he is a nonresident of the state, being a resident of Ireland. For this reason he is neither competent nor entitled to serve as administrator. (Code Civ. Proc., sec. 1369.) The petitioner himself is a resident of this state and in all respects competent. The lower court finding that Andrew Martin was incompetent to be appointed by reason of nonresidence, concluded that petitioner had no right under section 1383 of the Code of Civil Procedure, to a revocation of the letters theretofore granted to Clarence Martin, the theory being that such section authorized the revocation of letters only upon the petition of a relative who is himself competent to serve as administrator, or upon the petition of a competent nominee of such a relative who is himself competent. It therefore denied the petition. This is an appeal by said petitioner from the order denying his petition.

Section 1383 of the Code of Civil Procedure, provides: “When letters 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.” The words “who is competent, or any competent person at the written request of any one of them” were inserted in this section by amendment April 16, 1880. (Amendments to Codes 1880, p. 80.) Sections 1384 and 1385 of the Code of Civil Procedure,