Application for letters of administration. Arthur D. Turner died intestate on February 9, 1902, a resident of and leaving property in Solano County. He left as his sole heirs at law four brothers, residents of said county, three of whom, including appellant, were of age.
L.J. Turner, appellant, applied for letters, and J.B. Richardson, the guardian of the minor brother, V.F. Turner, also applied, and their petitions were heard together. It appeared at the hearing by the testimony of two of the brothers, that they desired the appointment of the guardian of the minor brother, although they had not made or filed any written request for such appointment. L.J. Turner testified that he is a brother of the full blood, and desired letters issued to him. On the evidence it was adjudged that Richardson was entitled to letters, and it was accordingly so ordered. L.J. Turner appeals from the order. *Page 445
Section 1365 of the Code of Civil Procedure prescribes who must be appointed and the order in which the persons named are entitled. The brothers are fourth in order. Section 1367 provides that where there are several persons equally entitled, "the court may grant letters to one or more of them." Section 1368 provides: "If any person entitled to administration is a minor or an incompetent person, letters must be granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court." Section 1369 provides: "No person is competent or entitled to serve as administrator or administratrix who is: 1. Under the age of majority; . . ." Section 1379 provides: "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. . . ." These are all the sections of the code bearing on the question. In their report of August 1, 1900, made to the legislature, the code commissioners proposed an amendment to section 1368, and in a note to the proposed amendment said: "This section was probably intended to mean, and will mean, if so amended, that where a single person would, if not a minor, be entitled to letters in preference to all others, his guardian, if competent and applying, is entitled to letters; but if there are two persons otherwise equally entitled, and one of them is a minor, the letters must be granted to the person not a minor." Appellant insists that this is the correct meaning of the section, when considered with reference to other sections, and, therefore, the court exceeded its authority in appointing the guardian of the minor brother in preference to a brother who was of age and otherwise competent. Respondent contends that section 1368 places the guardian of the minor brother on the same footing with the adult brother. The statute disqualifies a minor, and says that he is not competent or entitled to serve as administrator. But where "any person entitled to administration," (i.e. who is mentioned in one of the classes enumerated in section 1365), "is a minor or an incompetent person," his guardian or some other person entitled must be appointed. The person cannot serve, but his representative may, and in such case the court is given discretion to appoint the guardian or "any other person entitled." (Sec. 1368) For example: If there was but one brother, and he was a *Page 446 minor, and therefore disentitled and incompetent, the court might appoint his guardian or any other person entitled by the statute to serve. If, however, there is another brother who is of the age of majority, and otherwise qualified, he would be entitled as of right under section 1365, and we do not think that the legislature intended to confer an equal right by section 1368 on the guardian of a brother who is by the statute declared to be neither competent nor entitled, or that the legislature intended by that section to give "any other person entitled" an equal right. It is only by virtue of section 1368 that the guardian of a minor can be appointed, and we do not think it was intended to take away from the adult brother the preference given him by section 1365 It is only where "there are several persons equally entitled to the administration," that "the court may grant letters to one or more of them." (Sec. 1367.) Section 1365 places children before brothers of deceased. Suppose the father dies, leaving two sons, one of age and one an infant. Section 1368 would apply to such a case, and respondent's contention would leave it discretionary with the court to appoint the guardian of the minor child or some other person entitled, and this would be true also of the sisters, the grandchildren, and the rest of kin who are mentioned after brothers in section 1365 as entitled. The construction contended for by respondent would place the guardian of a minor on an equal footing with all these different classes of persons. We think the more reasonable meaning of the statute is, that where there is but one person of the class entitled, and that person is a minor, the court has the discretion to appoint his guardian or any other person entitled. But where there are two or more of that class, and one is a minor, the court has no such discretion, but must appoint one of the class who is of the age of majority, if otherwise competent. If all of the class are minors, it may be that respondent's position would hold, but not otherwise.
It is advised that the order be reversed, with directions to grant letters to appellant.
Haynes, C., and Cooper, C., concurred. *Page 447