64 P. 402 | Cal. | 1901
Appeal from order appointing administrator.
William Dow died intestate, in San Mateo County, in 1882, being a resident of said county at the time of his death, and leaving estate therein. He left, surviving him, his wife, Maggie J. Dow, and a son, James J. Dow. Before any steps were taken to administer upon the estate, the widow married one Sullivan. Petitions were filed for letters by the son, James J., and by James Crow, — the latter at the written request of said Maggie J. Sullivan. An order was made appointing Crow administrator and denying the petition of Dow. The question is as to whether or not the surviving wife, after her marriage with Sullivan, had the right to have Crow appointed at her written request. It is provided in section
"1. The surviving husband or wife, or some competent person whom he or she may request to have appointed."
It has been held, under the above section, that the surviving wife, although incompetent to serve on account of a non-residence, is nevertheless entitled to nominate a suitable person for administrator. (Estate of Cotter,
It was held in the above case that the written request was a right given by statute, and that it was the duty of the court to appoint the person so requested.
In the case at bar, Mrs. Sullivan was entitled to be appointed, and to administer upon the estate, although a married woman. (Code Civ. Proc., sec.
In this case, if letters of administration had been issued to the son without objection, the surviving wife might have them revoked and be appointed herself. Her right to request the appointment of a competent person is given in the very same sentence of the same subdivision of the section which gives her the right to administer. It is argued that after her marriage she ceased to be the "surviving wife" within the meaning of the section. True, she is not the wife of deceased. She could not be the wife of her husband after his death. She was his widow, but she was during life his wife, and as his wife she survived him. When the legislature used the words, "surviving husband or wife," it intended to designate the survivor of the spouses, and to give to such survivor the right to administer, or to name some person to administer.
In speaking of the right to request, in In re Bedell,
"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 *311 belongs to a class subsequent in rank to his own, would be to confine his selection to some person falling within the class immediately after his own."
In re Allen,
The order should be affirmed.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed. Harrison, J., Garoutte, J., Van Dyke, J. *312