
    Estate of DAVID McDOUGAL, Deceased.
    [No. 2,278;
    decided Sept. 12, 1884.]
    Administrator.—A Surviving Wife has the Eight to Nominate an administrator of her husband's estate, although she has been removed from her position as executrix of his will because of her permanent removal from the state.
    David McDougal died on August 7, 1882, in San Francisco, a resident thereof, leaving a last will wherein his wife, Caroline M. McDougal, was named as executrix.
    On May 25, 1883, letters testamentary were issued to her; and on October 1, 1883, she left this state for Washington, D. C.
    Thereafter proceedings were instituted under Sections 1436 et seq., Code of Civil Procedure, for the revocation of her letters, on the ground that she had permanently removed from this state, and on July 16, 1884, an order was made removing her from her position as executrix.
    A request in writing by her, for the appointment of W. K. Van Alen as administrator with the' will annexed, was subsequently filed, with a petition for his appointment.
    A counter-application was filed, but was denied. The grounds of contest of this application appear from the facts above recited and the opinion.
    P. J. Van Loben Seis, for Mrs. K. C. McDougal.
    J. B. Reinstein, for nominee of surviving wife.
   COFFEY, J.

I have read carefully the briefs of respective counsel in these applications, but do not consider it necessary to express any opinion as to the correctness of the conclusions of either; since section 1426 of the Code of Civil Procedure (to which they did not refer in their briefs, but which was discussed orally in open court) disposes of the matter. As the court said at the hearing, it can only exercise its discretion under the limitations of the statute, and section 1426 brings this case within the conditions of section 1365, Code of Civil Procedure. The conduct of the executrix and the cause of her removal do not affect her right of nomination, since the statute does not so declare.

It does not appear that Van Alen is incompetent under the statute; and this being so, he is entitled as of right, as the nominee of the surviving wife, to letters of administration with the will annexed: Code Civ. Proc., secs. 1365, 1426.

A Surviving Spouse, though incompetent to act as administrator because of nonresidence, is entitled to nominate some competent person for the position: Estate of Dorris, 93 Cal. 611, 29 Pac. 244; Estate of Healey, 122 Cal. 162, 54 Pac. 736.  