In re Estate of Cotter

Department No. 1, Ross, J.: Both parties to the controversy claim the right to administer the estate of Henry B. Cotter, deceased. Which has the better right, is the question to be determined.

Cotter died intestate, in the State of Missouri, on the 4th of April, 1878, being, at the time of his death, a resident of that State, and leaving surviving him a wife and two minor children, his sole heirs-at-law. He left in the City and County of San Francisco, State of California, fourteen thousand dollars’ worth of personal property. On the 20th day of May, 1878, the widow filed in the Probate Court of the City and County of San Francisco a renunciation of her right to administer upon the estate, together with a request that letters of administration [216]thereon be granted to one Thomas Crane, a resident of San Francisco, and a competent person. Thereupon, and on the same day, Crane petitioned the Probate Court for letters, to which petition Doolan, the Public Administrator of the City and County of San Francisco,'filed objections. On-the 3rd day of June, 1878, Doolan filed a petition, praying the issuance of letters of administration of the estate to him; claiming that, as Public Administrator, he was of right entitled thereto. Both petitions were heard together on the 9th day of July, 1878, and the facts above mentioned being made to appear, .the Probate Court made an order overruling the objections, denying the petition of Doolan, and granting letters of administration to Crane. From this order the Public Administrator appeals.

We shall assume, as most favorable to appellant, that the rights of the parties must be determined by the law as it stood at the time the order was made, and not when the proceedings were inaugurated. At that time the amendments to §§ 1365 and 1369 of the Code of Civil Procedure, which were adopted on the 1st of April, 1878, had gone into effect. Those sections then read as follows:

“ Section 1365. Administration of the estate of a person dying intestate must be granted to some one. or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate, or some portion thereof; and they are, respectively, entitled thereto in the following order:

“ 1. The surviving husband or wife, or some competent person whom he or she may request-to have appointed;

“ 2. The children;