16 Cal. 161 | Cal. | 1860
CCope, J. concurring.
This is an appeal from an order of the Probate Court appointing James Doble administrator of the estate of the deceased. Thomas Kirtlan was the brother of intestate, and gave to Doble a paper renouncing his claim to administer on the estate, and requesting the appointment of Doble. After the filing of the petition, and on the day set for the hearing, Thomas Kirtlan opposed the granting of the order, and filed written objections thereto, and prayed for letters to himself. The Probate Judge granted administration to the first petitioner, Doble. This appeal involves the correctness of this order.
By the fifty-second section of the Act in reference to the Estates of Deceased Persons, (Wood’s Digest, 396) it is provided: “Administration of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be, respectively, entitled in the following order: 1. The surviving husband or wife, or some person as he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brother. 5. The sisters. 6. The grandchildren. 7. Any other of the next of kin who would be entitled to share in the distribution of the estate. 8. The Public Administrator. 9. Creditors. 10. Any person or persons legally competent; provided, that when there was any partnership existing between the intestate, at the time of his death, and any other person, the surviving partner shall in no case be appointed administrator of the estate of such intestate.”
By the sixty-sixth section it is provided, that administration may be granted to one or more competent persons, although not entitled to the
There is no incapacity to hold this office, from the mere fact that the applicant is not of kin to the deceased. On the contrary, by the fifty-second section, a stranger is legally competent, though others are entitled to priority. And by the sixty-seventh section, when letters have been granted to any other person than the surviving husband or wife, brother, etc., any one of them may obtain the revocation of the letters, by presenting to the Probate Court a petition, etc.
We do not understand the sixty-sixth section as restricting the power of appointment given in the fifty-second section. The object of this section was to allow to those entitled the aid and assistance of others who might be more competent to attend to such business.
At the time of respondent’s petition no one had applied for administration. The respondent might, therefore, as well apply as any other person. If, after notice, no one contested, or claimed the office in priority to him, the Court might appoint him, subject to the right of the person in priority, as given in the sixty-seventh section.
The brother had a right to contest, or not, as he chose. He chose not to do so when the application of respondent was made; indeed, he expressly waived his right and encouraged the petitioner to make application for the appointment. We do not see that the brother might not have waived this right of administration, as well as any other right, in favor of a competent person; and having done so, and encouraged the petitioner to go to expense and trouble in applying for this office, why he is not, upon familiar principles, estopped now from withdrawing his assent and waiver, or renunciation.
Judgment affirmed.