Turner v. Richardson

Arthur D. Turner died intestate on February 9, 1902, a resident of Solano County, leaving property therein. As his sole heirs at law he left four brothers, residents of said county, three of whom were of age, the fourth a minor.

L.J. Turner, the appellant, one of the adult brothers, applied for letters of administration, as did also J.B. Richardson, the guardian of the minor brother, V.F. Turner, and the petitions were heard together. On the hearing it appeared by the testimony of two of the brothers that they desired the appointment of the guardian of the minor brother as administrator, although they filed no written consent or request for his appointment. L.J. Turner testified that he is a brother of the full blood, and desired letters issued to himself. The court on the evidence adjudged that Richardson, the guardian, was entitled to letters, and they were ordered issued to him. L.J. Turner appeals from the order.

This appeal involves the construction of section 1368 of the Code of Civil Procedure, a matter not heretofore passed upon by this court. That section provides that "If any person entitled to administration is a minor, . . . letters must be *Page 440 granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court."

Before proceeding to consider this section it is proper to refer to other sections bearing upon the subject of administration.

Section 1365 of the same code prescribes who must be appointed, and the order in which the persons named are entitled. The brothers are fourth in order. Section 1367 provides that when there are several persons equally entitled "the court may grant letters to one or more of them." Section 1369 provides: "No person is competent or entitled to serve as administrator or administratrix who is: 1. Under the age of majority; . . ."

It is insisted by appellant that the proper construction of section 1368 is, that where there is a single person of any class designated by that section as entitled in their respective order to letters of administration — children, brothers, sisters, grandchildren — who, if not a minor, would be entitled to such letters, his guardian is so entitled, but, where there are two persons otherwise equally entitled as members of a class under said section, one of whom is a minor, that letters must be granted to the person who is not a minor.

The respondent contends, and the lower court took this view of it, that the purpose of section 1368 is to place the guardian of a minor, and the adult members of the class to which the minor belongs upon the same footing as to the right to letters of administration, and we are of opinion that this construction is the proper one.