25 Cal. 585 | Cal. | 1864
Michael Carr died intestate in the County of Sacramento, leaving a sister, Dorothy Bolton, wife of George Bolton, residents of Sacramento County; a brother, Mark Carr, a resident
George Bolton, husband of said Dorothy Bolton, and F. McComber, Public Administrator of Sacramento County, each applied for letters of administration. Upon a hearing on the several petitions, it was ordered that letters issue to George Bolton. George Bolton afterwards, as appears by the findings, “came into Court and declared himself unable to procure the requisite sureties, waived his right to administer, and consented that letters of administration should be granted to said McComber.” Thereupon letters were issued to McComber, who qualified and entered upon his duties as administrator. After-wards said Mark Carr, brother of deceased, filed a petition praying that the letters granted to McComber be revoked, and the administration granted to him. Upon the hearing, the prayer of the petitioner was denied on the ground that he was not entitled to letters under the fifty-fifth section of the Act relating to estates of deceased persons, for want of integrity. John Bennett and Stephen Addison then filed a petition praying a revocation of the letters granted to McComber, and the issue of letters to themselves, which petition was accompanied by a written request to the same effect, signed by said Bolton and wife, and Mark Carr. The prayer was denied, and from the order denying the petition this appeal is taken.
There is no question as to the entire fitness of both McComber and the appellants to discharge the duties of the trust. . The only question is, as to the absolute, unqualified right of Mark Carr and Bolton and wife, on their written request, to have the letters issued to McComber revoked, and other parties of their selection, not otherwise entitled, appointed. This right is claimed by the appellants under the sixty-sixth and sixty-seventh sections of the Act. We think section sixty-six refers to cases where there is a vacancy in the administration. The Public Administrator is one of the persons entitled to -letters. There are others entitled to. preference. In this case ■a petition was filed by Bolton, the husband of the sister of the deceased, in light of his wife, and by McComber at the same
In the present case it appears that it had been judicially determined in a proceeding on a prior application that Mark Carr was himself incompetent.
Judgment affirmed.