Amador ledger., 1904-06-17
SUPREME COURT DECISION.
The Guardian of a Minor Stands on the Same
Plane as an Adult Heir as Regards Ap-
pointment as Administrator
Sac. No. 1865. In Bank. June J. ,e

Sac No. 1868. In Bank. June ,, 1904
In the Matter of the Estate of Arthur D.
Turner, Deceased: l.. ]. Turner, Appellant,
V. j. B. Richar son. Respondent.
Appeal from the Superior Court of Solano
County-A. j. iiuckles, Judge.
For Appellant-R. Clark and o. r. Coghlan.
| For Respond nGent-Geo. A. Lamont.
Arthur d. Turner died inteState on Feb
| ruary 8, 1902, resident of Solano county
| leaving property therein AS his sole heirs
| at law he left four brothers, residents of said
county three ofwhom were of age, the fourth
| a minor.
L. J. Turne,. the appellant, one of the adult
| brothers, applied for letters of administra-
| ton, as did also ]. B. Richardson, the GU ard
ian of the minor brother V. F. Turner. and
| the petitions we're heard together. On the
| hearing it appeared by the testimony of two
| of the brothers that they desired the appoint
| ment of the guardian of the minor brother
as administrator, although they filed no
written consent or request for his appoint
| ment 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
| isiued to him. L. j. Turner appeals from the
| order.
This appeal involves the construction of
section 1868 of the Code of Civil Procedure. a
matter not heretofore passed upon by this
court. That section provides that IF any
person entitled to admins tration is minor
| letters must be granted to his or her guardian
or any other person entitled to letters of ad-
ministration, in the discretion of the court"
| it is proper to refer to other sections bearing
upon the subject of administration.
Section 1865 of the same code prescribes who
| must be appointed, and the order in which
| the persons named are entitled. The broth
ers are fourth in Order Section 1867 provides
| that when there are several persons equally
entitled "the court may grant letters to one
| or more of them" Section 1869 provides
| ''No person is competent or entitled to serve
as administrator or administrators who is
| a. Under the age of majority;
1t is insisted by appellant that the proper
construction of section 1868 is; that where
there is single person of any class desgnat-
ed by that section as entitled in their res pect-
| i've order to letters of adminiStration-child-
| ren, brothers, sisters, grandchildren-who, if
not a minor, would be entitled to such letters
his guardian is so entitled, but, where there
are two persons otherwise equally entitled as
members of 4 class under said section, the
one of whom is q minor, that letters must he
granted to the person who is not Il minor
| The respondent contends, and the lower
court took this view of it, that the purpose
of section 1868 is to place the guardian of a
minor, and the adult members of the class
| to which the minor belongs upon the same
footing as to the right to letters of admins
| tratiOn, and we are opiniOH that this con-
| struction is the proper one
The language of section 1868 is general in
| its nature and unrestricted in its terms. 1t
confers a right i'll behalf of one member of a
I class; removes his disability to the extent
| that it confers upon his guardian right to
which save for his minority, he would be
himself entitled and in furtherance of that
| right and to uphold it the language of the
section should be literally, rather than re-
strictively, construed.
There is certainly nothing in the wording
| of the section which tends to restrict its
| application in the manner insisted on by
| appellant. Nor do any other sections of the
| code on the same general subject warrant it,
There is nothing in the terms of section
1865. declaring who are entitled to administer
whi ch gives an adult of any of the classes
| there mentioned preference over minors of
| the same class. The section simply desig-
mates by classes, generally, who are entitled
nd ff1icf
order in which the classes are entitled, but
| it makes no distsnction among members of
class on account of minority.
The preference which, in the absence of
| section 1868. is given 10 adults springs from
section 1869, which necessarily accords such
preference, because by this latter section a
minor is declared incompetent and not en-
| titled to serve as administrator. This dis
qualification is general and absolute in all
cases and as to all classes, and but for section
| 1868 the minor would have no right in any
| instance TO apply for letters. In fact, he has
none now. His personal diSqualfications re-
mains; he cannot serve, but his guardian as
| his representative may. The object 1868 un-
doubtedly is to remove the disqualification
of the minor and place him, though his
guardian, in the same category as if the
minority did not exist. In the case at bar,
the particular class of persons to which he
| belonged was among the brothers of decedent
and but for his minority he would have been
entitled, as one of that class. to apply for
| letters of administration, His minority alone
disqualified him. That disqualification was
1868 to some extent, and the only question is
to what extent has it been ACCOMPLISHED
The language of the section contains no linn
itation in this respect. 1t is certainly capable
of being fairiy and reasonably construed as
a removal OF the disqualification to the full
extent that ii is by section 1869 imposed, and
to allow him, through his guardian as his
representative, ali the rights to which he
would be entitled were he an adult, one of
which would be to contest, on an equal plane
with all the members of the class, for the
right to administer.
Nor do the words ''letters must be granted
to his or her guardian, any other person
entitled to letters of administration in the
discretion of the COURT indicate a contrary
intention, or place the adult in any more
favorable position than the minor
The use of these words in the section un-
doubtedly contemplated that there might be
other persons who would be entitled to
letters. Such persons are referred to gener-
ally, without any discrimination as to wheth-
er they may be adults, or minors others than
the applicant, or incompetents represented
by guardians. And as the term cor any other
person entitled" is general in its designation
OF persons, it must either apply to persons in
the same class as the minor, or to persons in
inferior classes who, as provided in section
1865, are entitled, in the absence of others