Gibson

This is an appeal taken by the husband of the deceased from an order denying a petition for letters of administration by reason of the fact that petitioner was at the time of filing the petition under the age of 21.

On January 3, 1963, Andrew Miller, the father of the deceased, Jessie Lou Gibson, filed a petition for letters of administration of his daughter’s estate. On January 24, 1963, James Michael Gibson, surviving spouse of the deceased, filed his petition for letters of administration of his deceased wife’s estate. Both petitions were heard together and after submission the court granted the petition of the father, Andrew Miller, based upon a Los Angeles County Probate Policy Memorandum No. 113, which in effect denies the right to administer an estate to a person unless he is over 21, regardless of the fact that he may be married.

Under Probate Code section 401, “No person is competent to serve as an executor or executrix who is under the age of majority. ...” Under Civil Code section 25 a person is a minor until reaching the age of 21, except that a person who has reached the age of 18 and is married is considered an adult for certain purposes. Our problem is whether the…