Gibson v. Miller

FOX, P. J. This is an appeal taken by the husband of the deceased from an order denying a petition for letters of administration by reason of the fact that petitioner was at the time of filing the petition under the age of 21.

On January 3, 1963, Andrew Miller, the father of the deceased, Jessie Lou Gibson, filed a petition for letters of administration of his daughter’s estate. On January 24, 1963, James Michael Gibson, surviving spouse of the deceased, filed his petition for letters of administration of his deceased wife’s estate. Both petitions were heard together and after submission the court granted the petition of the father, Andrew Miller, based upon a Los Angeles County Probate Policy Memorandum No. 113, which in effect denies the right to administer an estate to a person unless he is over 21, regardless of the fact that he may be married.

Under Probate Code section 401, “No person is competent to serve as an executor or executrix who is under the age of majority. ...” Under Civil Code section 25 a person is a minor until reaching the age of 21, except that a person who has reached the age of 18 and is married is considered an adult for certain purposes. Our problem is whether the purposes listed in section 25 include the administration of a deceased spouse’s estate. Probate Policy Memorandum of Los Angeles County, No. 113, says section 25 does not allow such person to probate an estate and interprets the section as follows: “Section 25 of the Civil Code, providing that a person who has contracted a lawful marriage and is of the age of eighteen or over shall be deemed to be an adult for certain purposes, does not qualify such person to act as an executor or administrator prior to the age of twenty-one. ’ ’

The issue in the instant case is whether a husband under the age of 21 but over 18 is considered an “adult” under Civil Code section 25, for the purpose of administering his deceased wife’s estate. If petitioner, James Michael Gibson, is an “adult” for such purposes then, under Probate Code section 422, subdivision (1), he had priority to administer the estate, and if otherwise qualified should have been appointed. The court has very limited discretion in this matter and generally must appoint a qualified person [301]with the highest priority. (See Estate of Berry, 56 Cal.App.2d 621, 624 [132 P.2d 836]; Estate of Meier, 165 Cal. 456, 459-460 [132 P. 764, Ann.Cas. 1914D 121, 48 L.R.A. N.S. 858].) And no facts are presented or contention made that petitioner would be otherwise disqualified.