In re the Estate of McDonald

John McDonald died testate in December, 1879, naming bis wife, Rosanna, executrix of bis will. Rosanna died testate in December, 1893, naming her sister, Cecelia McNeil, executrix of her will, without having commenced proceedings to probate the will of her said deceased husband.

On October 15, 1895, Cecelia McNeil applied for letters of administration with the will annexed of the said John MeDom aid, deceased, and on October 81, 1895, A. C. Freese, public administrator of the city and county of San Francisco, made a like application. Upon the hearing of the petitions the court granted letters to the said Cecelia McNeil and denied the petition of the said Freese. The proceeding is here upon the appeal of the public administrator from the order of the court granting letters to the said Cecelia McNeil.

Appellant claims, as of right, that by the provisions of section 1350 of the Code of Civil Procedure, he was entitled to letters of administration. That part of the section relied upon reads as follows: “If the sole executor or all the executors are incompetent, or renounce, or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must…