Estate of Cotter

Henry B. Cotter died intestate at St. Louis, Missouri, April 4, 1878, being a resident there and a non-resident of California, but leaving estate in California. He left a widow" and two children, all residents of Missouri.

The widow declined to administer in person, but nominated in writing Thomas Crane as administrator, who filed his petition for letters.

The Public Administrator also petitioned.

On the hearing of the two petitions, the Public Administrator claimed that by reason of her non-residence, under a modification of the Code of Civil Procedure, made between the filing of the petition and the hearing, (C. C. P., Sec. 1365-69,) the widow was rendered incompetent to administer herself by reason of her non-residence; and that she was thereby incompetent to nominate.

*180 The nominee of the widow claimed that the right to ad- • minister was vested at the date of the application, and could not be affected by any change in the law in that respect. .

The Court held that the law at the time of hearing was the rule to be followed;

But it further held that Section 1365 designating the order of persons to take letters and making the first class, “The husband or wife or some…