In this case it appears that Mary Barrett, a widow, residing in Sweetwater County, this State, departed this life on December 11, 1912, leaving an estate in said county, and leaving her four children, Mary Barrett, James Barrett, Patrick C. Barrett and Ed. Barrett, her heirs at law, all *287of whom were of full age (Mary being unmarried) and all residing in said county. That on January 2, 1913, James filed his petition in the District Court of said county, praying that he be appointed administrator of the estate of said Mary Barrett, deceased. On January 8, 1913, the other three children joined in a petition praying for the appointment of Patrick C. Barrett as such administrator. . On January 15, 1913, James filed objections to the appointment of Patrick C., and the matter of the two petitions and the objections came on for hearing and were heard by the court January 20 and 21, 1913. Evidence was taken, the matters argued by counsel and submitted to the court and judgment entered on said last mentioned date wherein the court found, so far as necessary to be considered here, as follows: “That neither of the two petitioners have been found incompetent, but thát upon all the evidence it appears to the court that it would be for the best interests of the estate that Mary Barrett, the oldest daughter and oldest child of said decedent, Mrs. Mary Barrett, is more competent from her education and business ability and experience to handle the affairs of said estate than either the said James Barrett or Patrick Barrett; Wherefore, it is ordered by the court that both of the petitions, that of James Barrett and that of Patrick Barrett, be denied, and that Mary Barrett be, and she is hereby, appointed administratrix of the estate of Mrs. Mary Barrett, deceased.” Erom that judgment James Barrett appeals.
The statutory provisions applicable to the case are contained in the following sections of the Compiled Statutes, 1910. Sec. 5502. “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.” The order of others, not necessary to mention here, follows. Sec. 5503. “Where there áre several persons equally entitled to administer, the court *288or judge or commissioner thereof in vacation may grant letters to one or more of them;” * * * * Sec. 5513. “Petitions for letters of administration must be in writing, signed by the applicant or his counsel, and filed with the clerk of the court,” * * * * * Sec. 5516. “Any person interested may contest the petition, by filing written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file a petition and must submit evidence in support thereof, * * * * and the court or judge must hear the two petitions together.” Sec. 5517. “On the hearing the allegations and proofs of the parties must be heard, and the court or judge thereof must order the issuing of letters of administration to the party best entitled thereto.” Sec. 5519. “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 court.”
In this case the only issues presented by the papers on file were, the competency of Patrick C and, if he was found to be competent, whether he or James or both of them should be appointed, there being no written opposition filed as to the competency of James. (Estate of Gordon, 142 Cal. 125, 75 Pac. 672). On the death of the mother each of the children had the right to apply for letters, and if competent, equally entitled to appointment, subject only to the discretion of the court to appoint one or more when more than one applied. The right to letters in the present case was an absolute right vested by the statute in the children, and that right could be claimed only in the manner provided, by the filing of a petition in writing. Mary and Ed. having united with Patrick C. in asking his appointment thereby waived their rights at least in so far as the issues then before the court were concerned. (In re Sullivan’s Estate, 25 Wash. 430, 65 Pac. 793; Estate of Richard Kirt-lan, 16 Cal. 162). The court having found both James and Patrick C. competent was limited in its discretion to de*289termining which of them should receive the appointment if both were not to be appointed. (McClellan’s Appeal, 16 Pa. St. no; In re Meyer’s Estate, 9 Cal. App. 694, xoo Pac. 712; Estate of Turner, 143 Cal. 438, 77 Pac. 144). The court having found both of the applicants, James and Patrick C., competent it was error to refuse to appoint either one or both of them, and it was also error to appoint Mary who was not an applicant at that time, but had joined in the petition requesting the appointment of Patrick C. It is insisted, however, that after the evidence had all been introduced, arguments heard and the matter submitted to the court, that the court on its own motion announced while all parties were present that he would deny both applications and if Mary would accept the appointment and would file a petition asking to be appointed he would appoint her, and that she then stated that she would accept the appointment. We find among the original papers certified to this court her application subscribed and sworn to and filed January 24, 1913, three days after the matter had been heard and judgment entered. The bill of exceptions as originally filed did not show that state of facts, and the defendant in error suggested a diminution of the record and was permitted to withdraw the bill for correction, and had some three pages inserted therein 'reciting what the court said after the matter was submitted and before judgment entered. The plaintiff in error has moved to strike those pages from the bill. As we view it it does not change the situation whether they are or are not in the bill. The reasons for the court’s decision are not important to be stated in the bill, and if the amendment to the bill was intended to modify or change the judgment as made and entered of record it is perfectly clear that that cannot be done merely by a recital in a bill of exceptions. It is not, therefore, necessary to pass upon the motion. The error of the District Court was in denying the applications of James and Patrick C. when he found both to be competent.. It should have appointed either the one or the other, or both, and in the circumstances had no discretion to do otherwise. James took exceptions to the *290denial of his application, but neither Máry, Ed or Patrick C. took any exception to the denial of their petition for the appointment of Patrick C. and are not here complaining on that account. The judgment denying the petition of Patrick C. not being appealed from became final; and we are of the opinion'that the judgment of the District Court denying the petition of James and appointing Mary should be 'reversed and the cause remanded with direction to vacate the appointment of Mary Barrett as administratrix of the estate of Mary Barrett, deceased, and to appoint James Barrett as such administrator upon his qualifying according to law; and it is so ordered.
Reversed and remanded with directions.
Scow, C. J., concurs. Potter, J., did not sit.