I have read carefully the briefs of respective counsel in these applications, but do not consider it necessary to express any opinion as to the correctness of the conclusions of either; since section 1426 of the Code of Civil Procedure (to which they did not refer in their briefs, but which was discussed orally in open court) disposes of the matter. As the court said at the hearing, it can only exercise its discretion under the limitations of the statute, and section 1426 brings this case within the conditions of section 1365, Code of Civil Procedure. The conduct of the executrix and the cause of her removal do not affect her right of nomination, since the statute does not so declare.
*110It does not appear that Van Alen is incompetent under the statute; and this being so, he is entitled as of right, as the nominee of the surviving wife, to letters of administration with the will annexed: Code Civ. Proc., secs. 1365, 1426.
A Surviving Spouse, though incompetent to act as administrator because of nonresidence, is entitled to nominate some competent person for the position: Estate of Dorris, 93 Cal. 611, 29 Pac. 244; Estate of Healey, 122 Cal. 162, 54 Pac. 736.