Estate of Turner

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…

I dissent, and adhere to the opinion delivered in Department. The following is the opinion rendered in Department Two on the 22d of December, 1903, referred to in the dissenting opinion of Mr. Justice McFarland: —

Arthur D. Turner died intestate on February 9, 1902, a resident of Solano County, leaving property therein. As his sole heirs at law he left four brothers, residents of said county, three of whom were of age, the fourth a minor. L.J. Turner, the appellant, one of the adult brothers, applied for letters of administration, as did also J.B. Richardson, the guardian of the minor brother, V.F. Turner, and the petitions were heard together. On the hearing it appeared by the testimony of two of the brothers that they desired the appointment of the guardian of the minor brother as administrator, although they filed no written consent or request for his appointment. L.J. Turner testified that he is a brother of the full blood, and desired letters issued to himself. The court on the evidence adjudged that Richardson, the guardian, was entitled to letters, and they were ordered issued to him. L.J. Turner appeals from the order. This appeal involves the construction of section 1368 of the Code of Civil Procedure, a matter not heretofore passed upon by this court. That section provides that "If any person entitled to administration is a minor, . . . letters must be *Page 440 granted to his or…