ON REHEARING.
STEYENS, District Judge.This case is before the court on a petition for rehearing filed by the respondent, F. R. Brownell. The opinion, heretofore filed in this case, sets forth the statement of facts fully and in concise language, and it will not be necessary here to reiterate it. The petition states two grounds on which it is urged the supreme court erred in the former opinion: First, that the court erred in holding that William McCormick could, as a matter of right, withdraw his name from the Brownell application, when he had not petitioned to withdraw his name as a matter of right; but for the reason that he had been misinformed as to his rights. Second, that the court erred in holding that William McCormick had a right to control the appointment of administrator until the probate judge had acted upon Brownell’s application.
We have examined the cases cited by appellant and each seems to have been governed by the particular facts in issue. In the Estate of Kirtlan, 16 Cal. 162, cited in appellant’s brief, the request came from a brother, who was entitled to letters of administration. The opinion shows that his request to with*24draw his writing requesting the appointment of D. was not made prior to the hearing on the petition, and that the brother waived his right, having encouraged D. to go to the trouble and expense of applying for letters of administration.
The last paragraph of the opinion seems to furnish the key for its interpretation: “The brother had a right to contest or not, as he chose. He chose not to do so when the application was made; indeed, he expressly waived his right and encouraged the petitioner to make application for appointment.”
In the ease at bar the appellant seems to have acted without delay at the earliest moment, when he became cognizant of the law and facts and of his rights thereunder.
In the case of In re Bedell, 97 Cal. 339, 32 Pac. 323, the father first requested the appointment of G. as administrator, and a petition was also filed by the public administrator for letters of administration. Subsequent to his first request, the father, who was entitled to letters, requested the appointment of the public administrator, both being requests for one not at the time entitled to administer the estate. The father, who was entitled to letters, did not himself apply for the appointment, and the court held that having once waived and relinquished his right to administration in favor of the respondent, the court was not required to pay any regard to his subsequent request for the appointment of the public administrator.
In the case of In re Sullivan’s Estate, 25 Wash. 430, 65 Pac. 793, the application was made for letters by creditors of decedent, and the court said:. “Under the circumstances we believe the court was empowered to appoint ‘ any suitable, and competent person’ ” and refused to interfere with the discretion exercised by the probate court. This ease does not seem to be in point.
In the case of In re Clute’s Estate, 37 Misc. Rep. 710, 76 N. T. Supp. 456, the sole legatee for a valuable consideration, to wit, $200, executed a renunciation and assigned all her interest in the estate to another who applied for letters, and the court held, “That the cases do not seem to go so far as to hold that in every case there is an absolute right of retraction, which *25must be accepted by tbe surrogate, without his consent,” but the refusal- to allow such renunciation seems to be based on the fact that she had assigned her interest for a valuable consideration, which is not the fact in the case at bar.
In the very recent case of the Estate of Blackburn (Mont.), 137 Pac. 381, where the widow had renounced her right to letters of administration and had nominated another who had been appointed and she thereafter sought to withdraw such renunciation and have letters granted to her, the court said: “Therefore her due was absolute frankness on the part of the person seeking her nomination; and if he, pending her assent to his appointment so demeaned himself as to deceive, or lull her into a false security concerning his attitude, and she, believing him friendly to her and not hostile to her claims, waived her right and assented to his appointment to her disadvantage, it cannot be said that her waiver was fairly procured or freely given,” and the court ordered his letters revoked and the issuance of letters to the widow.
In the case of Rowell v. Adams, 83 S. C. 124, 65 S. E. 207, the following language is used in the syllabus: “Waiver of right to administration may be retracted at any time before it is acted upon, ’ ’ and in this case for three years A. did nothing, so far as the opinion shows, until after petitioner had filed his petition, which is not analogous with the case at bar.
The right to have letters of administration issued to the nominee (Brownell) was the right of McCormick, not Brownell.
In the Estate of True, 120 Cal. 352, 52 Pac. 815, it is stated that “One appointed as coexecutor of a will who renounces his right as such may retract his renunciation at any time prior to the grant of letters to the other. The fact of such renunciation, even if done in pursuance of an agreement with the other executor, cannot operate to estop him from withdrawing it.”
At common law the rule was well settled that the renunciation of an executor might be retracted at any time before letters had been granted to another.
In Casey v. Gardiner, 4 Brad. Surr. Rep. (N. Y.) 13, it is held that a renunciation may be retracted by the executors *26at any time before'the grant of administration. This is rather a matter of right than a privilege within the discretion of the surrogate.
This doctrine is sustained by numerous eases. (In re Shiels’ Estate, 120 Cal. 347, 52 Pac. 808; 11 Am. & Eng. Ency. Law, 756, 757; Thomas v. Knighton, 23 Md. 318, 87 Am. Dec. 571; Estate of Keane, 56 Cal. 407; In re Wilson’s Estate, 92 Hun, 318, 36 N. Y. Supp. 882; Abbott’s N. Y. Cyc. Dig. 6-235; Rowell v. Adams, 83 S. C. 124, 65 S. E. 207.) The later, and what seems to us the better considered cases, follow the doctrine heretofore announced by this court.
We see no reason for a modification of the original opinion herein, and judgment is ordered in accordance with the former opinion. Costs awarded to appellant.
Ailshie, C. J., and Stewart, J., concur.