Estate of Robie — 1 Myrick 226

Majority

p. 226

ESTATE OF A. H. ROBIE.

No. 8815

Jan. 9, 1879.

Headnote

Lettebs of administration__Persons entitled.—As against the Public Administrator, under section 1365, O. 0. P., the nominee of a widow, though she be a non-resident, is entitled to the preference in the issuance of letters as a matter of right, the Court having no discretion in the premises.

Construing sections, C. C. P., 1365-69.

Greathouse & Blanding, for J. B. Haggin.

R. H. Lloyd, for Public Administrator.

Deceased, a resident of Idaho, died intestate, leaving some $33,000 in this city and county. His widow and children are residents of Idaho. His widow requested, in

p. 227

writing, that letters of administration issue to J. B. Haggin. William Doolan, Public Administrator, opposed Haggin’s application and petitioned for letters to himself.

Under Sec. 1365, C. C. P., the nominee of the widow is entitled to letters before the Public Administrator, even if the widow be a non-resident. He has, by virtue of her nomination, a place in the list. Haggin, being a resident, and having the widow’s nomination, is entitled to letters. Sec. 1379 does not apply to a case like the present, but to cases where the party is not of right entitled. Under Sec. 1365, there is no discretion, but a right. Sec. 1365 is not affected by Sec. 1369, because the nominee has as much a place in the list as if he were placed there as Ho. 2; and the non-residence of the husband or wife does not at all effect his or her right to make the nomination. By no other construction can Sec. 1365 have any effect whatever.