In re Estate of Bedell

Harrison, J. The question presented on this appeal is, whether the public administrator, or the nominee of [340]the father and mother of the deceased, is entitled to letters of administration upon her estate.

The deceased left a will, which was admitted to probate; but the person named therein as executor having renounced his right to serve, the father and mother of the deceased severally requested that the court appoint E. W. Gunther as administrator with the will annexed, and a petition for such appointment was thereupon filed by him. The public administrator also filed a petition that administration on the estate be granted to him. Both petitions were heard by the court at the same time, and at the conclusion of the hearing the court made its order appointing Gunther, and denying the application of the public administrator, from which order the public administrator has appealed.

The appellant claims that he is entitled to the administration by virtue of the provisions of section 1365 of the Code of Civil Procedure, while the respondent claims that under the provisions of section 1379 of the Code of Civil Procedure the court was authorized to appoint him in preference to the appellant.

Section 1365 of the Code of Civil Procedure is as follows: “ 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; 3. The father or mother; .... 8. The public administrator; . . . . 10. Any person legally competent.”

It is alleged on behalf of the appellant that the several classes named therein have the respective right to be appointed in the order in which they are named in the section, and that, with the exception of the nominee of the husband or wife, the persons named in the section must be preferred in their respective rank to the [341]nominee of any other prior class; in other words, that in the present case the court could consider only the nominee of a husband of the deceased, and that the public administrator has a preferred, right to the administration ovér that of the nominee of the father. This construction would, however, deprive the provisions of section 1379 of the Code of Civil Procedure of the effect to which its language is entitled. That section provides that “ administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court.” If the relative right of appointment is to be determined by the order in which the parties entitled are enumerated in section 1365, and the nominee of any of the classes therein named, other than that of the husband or wife, is not to be regarded by the court, this provision of section 1379 would lose all effect. The fact that the, person entitled is permitted to make a request that administration be granted to a person “ not otherwise entitled ” must receive some consideration in the construction of the statute, for it is not to be supposed that the legislature has given such permission merely to have the request denied. The evident purpose of the provision is to give to the one entitled to administration the power to select some competent person to discharge the duties of the office; but to hold that his request is not to be considered when resisted by one who belongs to a class subsequent in rank to his own, would he to confine his selection to some person falling within the class immediately after his own.