Amador ledger., 1904-06-17

having superior rights to a grant of letters
NOW, no good reason can be Sl-Eested Why
when the legislature removed tme disability
from the minor by comforting a right to re-
presentation ON his gurdlan, ii was intended
that the only effect of the application would
be to give the court discretion TO either ap-
point him. or some mem ber of an inferior
class. This would be according the minor no
substantial benefit or advantage, and IT,
section doubtless contemplated the conferr-
ing Of some substantial right, and this could
be best accomplished by placing him III the
class to which he would belong if he were an
adult, and on an equality with other m members
of that class, not by placing him on level
with members of an inferior class, or by i'm
porting such members into his class and put
ting them on an equality with him. Under
any other con Struction the section would he
held TO mean that, while the guardian NAV
apply because his ward is one of a preferen-
tial class who, but for his minority, would be
entitled to administration, still, when he does
apply, the court may appoint one of an in
feror class. who. as against the minor, if an
adult, would not be entitled TO be heard at
all; that while the minor might he, in by
superior right he may be out by inferior dis
placement. The grant of such vague and
illuSory right was never ercontemplated. Mem
berS of an inferior class are never entitled to
administer when there is member of "A
superior class who is disqualified, and by
qualifying the minor of such superior class
to obtain grant through his guardian it is
hardly conceivable that the legislature in
tended to confer on him no greater privilege
than TO contest with others of Il subordinate
class for the discretionary award of a grant
of administration.
Such construction would neither be conson-
ant with fairness or justice to the minor and
we are satisfied that this was not the legislat-
i've intent but that the expression ''or anv
other person entitled to administer was in
tended to and does apply to all persons who
are entitled to administer as being of the same
class the minor would be, were he an admit
We think this is the proper construction for
several reasons. In the first place, the general
subject matter OF the section would in
dicate it. The section is dealing with the right
of u minor to apply through his guardian for
letters it removes his disability and author
ICES the grant to his guardian of letters as a
member of given class; in that class there
may be others equally entitled seeking letters:
independent of adults there may be other minors
than himself, or there may be all minors whose
respective guardians are applying for letters
as representatives of their wards. Under these
circumstances it would only be a reasonable
construction OF the words 'other persons en-
titled" to hold that it applies to persons who
are of the same class as. the minor. who, either
as adults or minors, were seeking letters. In
the next place, it is this construction only
which accords such minor, through his guard
Ian ,ztne absolute right to letters OF adminiS-
tration when he is the sole representative of
his class, which cannot be if those outside
that claSS-perSonS of an inferior grade-are en-
titled to be considered under the category of
"other persons entitled" Lastly, when we
consider the entire section, in as far as it con-
ferS discretion upon the court to appoint the
guardian or other person entitled" O." we find it
harmonious with. and is in effect the same as
the rule laid down in section 1867, where it is
declared that, ''when there are several persons
equally entitled to the administration the
court may grant letters 10 one or more of them -
This is the general rule and applies only in
those cases where the persons applying are
equally entitled because they are members of
the same preferred class, and not only do we
think it was not intended to lay down a rule
under section 1873, but on the contrary, from
the use OF practically the same language, in the
former section that it was intended to reiterate
and adopt the general rule.
As then the expression 'or other person en-
titled" cannot be construed as giving members
of subordinate class an equal. or any right
to be heard, or appointed, by the court in it's
discretion. when the application is made in be-
half OF Il minor of a superior class, it neceS-
Sarily follows that the language must apply
and be confined to members of the same class
as the minor, and that, as the law nowhere con-
ferS any special right upon an adult TO be pre-
and as the law, by removing the disability of
the minor. intended to, and does, place him in
the same category of persons entitled, to which
the adult belongs, we are of opinion that the
administration, Notwithstanding there are
adults; that the law places them upon the
same plane OF equality, and that the court, in
It's discretion may appoint the guardian of the
minor to the exclusion of the adult. This was
done in the case at bar, and, as the action of
the court was in harmony with the construction
we have placed upon section 1868, and was the
exercise of its discretion. the order appealed
from is affirmed. I,oRIGAN j
We concur;
ANGELLoTTI. j,
SHAW, j.
VAN DYKE, J.
BEATTY. c. J.
l dissent and adhere to the opinion heretofore
delivered in department (27 Cal. Dec, p. l)
MCFARLAND, j.