IN THE MATTER OF THE ESTATE OF PACHECO, 23 Cal. 476

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. Juana Sanchez de Pacheco died in 1853, leaving a last will and testament, appointing therein two executors, who administered upon the estate until their letters were revoked on account of mismanagement of the estate, and the respondent in this proceeding, Emeric, was duly appointed administrator, with the will annexed.

Some time after the appointment, several of the children and grandchildren of the deceased, and who are the appellants herein, united in a petition praying that Emeric be removed from the administration of the estate, and that one of their number, Rosa Pacheco de Sibrian, and one Penniman, be appointed in his place, on the ground that he was not entitled to the position by any relationship to the deceased or interest in the estate; that his appointment was not requested by any of the children of the intestate; and other objections are urged in the petition filed by the appellants.

The application was heard by the Court, who found the following facts: “ That the estate of Juana Sanchez de Pacheco is one of great value, to wit: of the value of at least $100,000; that the acts of the present administrator in all respects meet the approval of this Court; that the petitioner, Rosa Pacheco de Sibrian, is wholly incompetent to perform the duties that would be devolved upon her as administratrix of said estate, and the applicant, Penniman, is a trespasser upon the property of the estate, and is a very improper person to be intrusted with an estate to the prosperity of which he is shown to be in interest opposed.

The Court therefore, now, on this ninth day of December, denies said petition with costs against said applicant.” From this judgment the applicants appeal. The first point urged by the appellants is, that they have an absolute, unqualified, personal statutory right to have the appointment of the respondent revoked; and second, that they have the same right to have the applicants for letters appointed to administer upon said estate.

One ground of objection to the continuance in office of the present administrator is, that the estate consists of a large tract of land, which has never been partitioned between the heirs; that several of the heirs are and have been for several years residing upon and occupying portions of the land, and that he has brought several suits against them to eject them therefrom, and to recover large sums for back rents, when he has means of the estate in his hands more than sufficient to pay all liabilities against the estate.

Sec. 67 of the Probate Act provides, that “ when letters of administration have been granted to any other person than the surviving husband, or wife, the child, the father, mother, or brother of the intestate, any one of them may obtain the revocation of the letters by presenting to the Probate Court a petitiofi praying the revocation, and that letters of administration be issued to him or her.” The next

section provides for issuing a citation to the administrator, and Sec. 69 is as follows: “At the time appointed, the citation having been duly served and returned, the Court shall proceed to hear the allegations and proofs of the parties; and if the right of the applicant is established, and he or she be competent, letters of administration shall be granted to the applicant, and the letters of the former administrator be revoked.” The appellants contend that the incompetency referred to in this

section must come within the disqualifications prescribed in Sec. 55 of the same act, which was amended in 1861, as follows : “ Eo person shall be entitled to letters of administration who shall be, first, under the age of majority; or, second, who shall have been convicted of any infamous crime; or, third, who upon proof shall be adjudged by the Court incompetent to execute the duties of the trust by reason of drunkenness, imprudence, or want of integrity or understanding.” (Stat. 1861, 632.) On the trial, it was admitted that one of the applicants, Rosa Pacheco de Sibrian, cannot read, write, or speak the English language; that she cannot read or write the Spanish; that she is sixty-nine years old, a Californian by birth, and a daughter of the intestate.

It is not claimed that the other applicant, Penniman, is subject to any of the disqualifications mentioned in Sec. 55, nor is the other applicant properly included therein. The fact of her great age, and that she cannot read or write, and cannot speak English, do not show any want of understanding within the statute. It is true, they may render it difficult for her to perform some of her duties properly, yet they do not render it impossible. In the case of Coope v. Lowerre (1 Barb.

Ch. 45), it was held by the Court of Chancery of Eew York, in construing a similar statute, that the Surrogate had no discretion to exclude a person declared by the statute to be entitled to a preference, except for some of the causes specified in the statute. And it was held, that no degree of legal or moral guilt or delinquency was sufficient to exclude a person from the administration, as the next of lcin, in the cases of preference given by the statute, unless such person had been actually convicted of an infamous crime.

In that case, the administration was granted to a person proved to be dishonest, and against whom a large judgment had been recovered in a case of erim. con. The same principles were affirmed in the case of Harrison v. McMahon (1 Brad. 283), where the administration was granted to one charged with being addicted to gambling and betting, and who had no regular business except that of a gambler. We therefore hold that under the admissions and evidence in this case the daughter, Bosa Pacheco de Sibrian, was entitled to letters of administration.

The evidence in relation to the character and fitness of the other applicant, Penniman, is clear and conclusive in his favor; in fact, no evidence seems to have been introduced impeaching it. The finding of the Court was, that he was a trespasser upon the property of the estate; but the appellants offered to prove, on the trial, that he and his partner were the owners of five hundred acres of the land formerly belonging to the estate, and which he purchased from one of the heirs; but the Court refused to admit the evidence.

How the Probate Judge could make such a finding, after excluding the evidence offered to disprove it, we cannot conceive. But even if the findings on this point were true, they form no just ground for his exclusion, where he is the choice of so large a proportion of the children as in this case. Under the admissions and evidence in this case, we think it clear that both the applicants are entitled to be appointed to administer upon the estate.

All the facts necessary to show that the applicants were entitled to administration, were admitted by the parties at the trial, and it is not, therefore, necessary to send the case back for a new trial. The orders appealed from are therefore reversed, and the Probate Court is directed to enter an order in accordance with this opinion.