Estate of Myers

It appeared that the heirs at law of deceased are three daughters, Kate Roche, Sophia Drier and Ann Baker; Thomas M. Roche is a grandson of deceased, but is not entitled to succeed to any portion of the personal estate of deceased; he was nominated, in writing, by Kate Roche and Sophia Drier, each of whom is competent to act as ad ministratrix, and their written request was filed herein with the petition of said Thomas M. Eoehe, asking that letters he issued to him.

Ann Baker was competent to act as administratrix and she also prayed for letters, the petitions being heard together. The court held that it had no discretion, and that Ann Baker was entitled “as a matter of strict legal right” to be appointed administratrix, and the judge so ordered.

Section 1365, Code of Civil Procedure, fixes the order in which certain classes of persons are entitled to administer, in which order the court must make the appointment. The order is as follows: “1. The surviving husband or wife, or some competent persons whom he or she may request to have appointed; 2. The children.” The other eight classes need not be stated.

Section 1366, Code of Civil Procedure, provides that “of several persons…