| Idaho | Dec 7, 1908
Lead Opinion
(After Stating the Facts.) — The first question to be determined in this case is: Can one who is himself entitled to administer upon an estate, by filing a request for the appointment of another, thereby advance the one for whom the request is made to the same rank and class as the one making the request? Sec. 5351 of the Eev. Stat. reads as fol-laws:
“Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, 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;
“4. The brothers;
“5. The sisters;
“6. The grandchildren;
“7. The next kin entitled to share in the distribution of the estate;
“8. Any of the kindred;
“9. The public administrator;
“10. The creditors;
“11. Any person legally competent;
“If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate.”
John J. Daggett, a brother of the deceased, was himself entitled to administer under the provisions of subdivision 4
It will be noticed that the language composing the latter part of this subdivision is not found in connection with any of the other ten subdivisions. In other words, the statute itself specifically authorizes a husband or wife, by designation and request, to advance any competent person to his or her own rank, but it does not authorize any one of any of the other classes, by request or otherwise, to advance a person to his or her rank. If the expression “or some competent person whom he or she may request to have appointed, ’ ’ had been intended to apply to each of the eleven subdivisions, that language would have been placed in the body of the section preceding the subdivisions, in which case it would have applied to all the subdivisions. Appellants' contend, however, that under the provisions of see. 5365, “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. ’ ’ "We think this section means to provide for the appointment of any competent person upon the request of some one entitled thereto, where no application has been made by some person entitled to administer under the statute. Under this section of the statute, it is a matter addressed to the sound discretion of the court and is not an arbitrary or mandatory provision or requirement.
“Their petition requesting the appointment of Croly was addressed to the mere discretion of the probate judge; it did not operate to supersede the claim of the public administrator, otherwise established under the statute, to receive letters of administration, and it not appearing that the probate court in refusing to appoint Croly has abused the discretion confided to it in terms by the statute, the order will not be disturbed, but must be affirmed here.”
The Morgan ease was cited, considered and approved In re Healy’s Estate, 122 Cal. 165, 54 P. 736" court="Cal." date_filed="1898-09-26" href="https://app.midpage.ai/document/abrahams-v-hosselkus-5449368?utm_source=webapp" opinion_id="5449368">54 Pac. 736. In the latter ease heirs falling under class 7 of sec. 1365 (Code Civ. Proc., Cal.), petitioned for the appointment of one coming under the last class, being merely “a person legally competent.” The superior court denied the request and appointed the public administrator, and the supreme court affirmed the judgment— holding that the appointment was in the discretion of the court. The court also held in the Healy case that sec. 1379, Code Civ. Proc. of California, which is identical with our section 5365, is not mandatory, but “imposes a discretion as to the granting of such request in the court.” (See, also, In re Dorris Estate, 93 Cal. 611" court="Cal." date_filed="1892-03-12" href="https://app.midpage.ai/document/in-re-the-estate-of-dorris-5445853?utm_source=webapp" opinion_id="5445853">93 Cal. 611, 29 P. 244" court="Cal." date_filed="1892-03-12" href="https://app.midpage.ai/document/cross-v-reed-5453697?utm_source=webapp" opinion_id="5453697">29 Pac. 244; In re Bedell’s Estate, 97 Cal. 339" court="Cal." date_filed="1893-02-17" href="https://app.midpage.ai/document/in-re-estate-of-bedell-5446336?utm_source=webapp" opinion_id="5446336">97 Cal. 339, 32 Pac. 323; In re Brundage’s Estate, 141 Cal. 538, 75 Pac. 175.)
The peculiar facts of this case, however, mate it necessary for us to consider and construe see. 5366, Rev. Stat., in connection with the foregoing statutes. That section is as follows:
“When letters of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother or sister of the intestate, any one of them who is competent, or any competent person at the writ*510 ten request of any of them, may obtain the revocation of the letters and be entitled to the administration by presenting to the court a petition praying the revocation and that letters of administration may be issued to him.”
By the provisions of this section, where any person not a member of one of the first five classes enumerated in sec. 5351, supra, has been appointed administrator, the appointment may be revoked on the application of any member of these five classes who is himself competent to administer, or upon the application of his or her nominee, and thereupon letters shall be granted to some one of the members of these five classes petitioning therefor, or some competent person designated by a member of one of these classes. It therefore becomes necessary to determine whether or not any of the parties to this controversy come within the designated classes. We turn to the record and find that Jennie S. Thomas was not competent because she was a married woman, and the same is true of Ella Sue Matthews. Henry H. Bangs, who was appointed, was not a member of any one of the first five classes designated by see. 5351. In the language of sec. 5366, he was not “the surviving husband or wife, child, father, mother, brother or sister of the intestate.” Bressler belongs to the same class as Bangs. John J. Daggett, one of the appellants, is a brother of the deceased, and was at the time of this application in all respects competent and qualified for appointment as administrator of the estate of his deceased brother; he was also a member of class No. 4. It therefore follows that under the provisions of sec. 5366, above quoted, either John J. Daggett or any competent person whom he might designate in writing might petition for the revocation of the letters of administration issued to Henry H. Bangs, and thereupon'have letters issued to himself or such nominee. In view of the provisions of this statute it would be useless for the court to exercise his discretion in the first instance in appointing an administrator, as he would immediately thereafter be compelled, under the provisions of this statute, to revoke the appointment and appoint the person nominated by John J. Daggett. We think these provisions
“The power to procure a revocation of letters, and the appointment of a nominee after letters have been issued to one not in the first five classes enumerated in sec. 1365, Id., is accorded to the members of those five classes and to their nominees by see. 1383, Id. But it is here- to be noted that the members of class 7, to which the McCabes belong, are not empowered to nominate under sec. 1365, Id., nor to secure a revocation of letters under sec. 1383, Id. Their rights, then, are wholly embraced within see. 1379, Id., upon the construction of which this question must depend.”
¥e conclude, therefore, that John J. Daggett being the only petitioner or applicant who was competent and qualified to administer under the first five subdivisions of sec. 5351 and also under sec. 5366, that his nominee being otherwise a competent person to administer, should have been appointed, and that it was error to refuse to make such appointment. The judgment must be reversed, and it is so ordered, and the cause is remanded for further proceedings in accordance herewith. Costs in favor of appellants.
Rehearing
ON PETITION FOR REHEARING.
The respondents have filed a petition for rehearing. It presents bnt one question which we deem of sufficient importance to consider further. It is argued that the request of John J. Daggett, a brother of the deceased, for the appointment of Bressler did not in any way add to the force of the application of Jennie S. Thomas or take away from the probate court the discretion vested in it under the provisions of Rev. Stat., sec. 5365, and that the provisions of sec. 5366 have no application to a hearing for letters of administration in the first instance, and only apply when letters have been issued, and the petition of any one of the class enumerated in said section or the nominee of such person is presented for the revocation of letters already issued, and the request to issue letters to the applicant or the nominee of such applicant. As stated in the principal opinion, however, courts will not do or permit to be done vain and useless things when they can be avoided by the application of the law to the facts as they are presented to the court. While it is true that sec. 5366 in terms applies when letters have already been issued, yet, as stated in the principal opinion, when the facts contained in sec. 5366 are presented to the probate court upon the hearing of a petition for letters, the court will construe said section in connection with secs. 5365 and 5351, and not make an appointment of an administrator, which under the provisions of see. 5366 would immediately be subject to removal upon the application of any of the class enumerated in said section or the nominee of such person. When the conditions, provided for in sec. 5366, are presented to the court at the original hearing for letters, then it is the duty of the probate court to construe said section in connection with the other sections and issue the letters to the person qualified to receive the same under the provisions of said section, and not do a useless and unnecessary thing by appointing some other person whose removal would be compulsory upon the
The discretion-therefore vested in the probate court under the provisions of see. 5365 ceases to be a discretion, and the duty becomes absolute when the application is made by any of the class or the nominee of such person mentioned in said see. 5366. This construction in no way affects the provisions of see. 5363 of the Rev. Stat., as in this latter section the letters of administration must be granted to any applicant, though it appears there are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves. In other words, the letters must be granted to the applicant unless the person who has a better right thereto appears and asks for letters or nominates someone under the provisions of sec. 5366. This construction harmonizes all these different sections of the statute with reference to letters of administration, and imposes the duty upon the probate court, in making the appointment, not to do a vain and useless thing. Petition ior rehearing is denied.