tling the community. The wife's interest is not subject to administration under the laws for the settlement of the estates of deceased persons. lbid. Marriage, proof of.-Cohabitation.-Cohabitation and reputation are circumstances from which a marriage in fact may be inferred; but these circumstances do not of themselves constitute a marriage. They are evidence merely of a marriage contract, which may be rebutted by other testimony. Davis v. Brown, 1 Redf. Sur. Rep. 259. Thus, where A. B,, the deceased, and C. D. had cohabited together as man and wife, at a place of public resort, during two summers, and had taken a house in town under an assumed name, but they were not publicly recognized or known as man and wife among the family relatives and friends: Held, that the presumption of marriage was rebutted by the confession of C. D., that she was not married to the deceased. Letters could not therefore be granted to her on the grounds that she was the widow of the deceased, though on her application for letters, she had sworn positively that she was such widow. lbid. The nullity of a marriage, voidable merely, must first be pronounced by a court of competent jurisdiction, before the fact of its invalidity can be taken advantage of in any proceeding. If not declared void, it remains good and legal for all purposes, and either party surviving the other, has a prior right to letters of administration. White v. Lowe, 1 Redf. Sur, Rep. 386, Where a woman whose husband had been absent for more than five successive years, without being known to her to be living, and was reputed to be dead, cohabited with the intestate, and lived with him as his wife for twenty years, until his death; and the first husband, though living, had not obtained a decree annulling the second marriage: Held, that the woman was the widow of the intestate, and was entitled to letters of administration on his estate, in preference to all others claiming them. Ibid. Where a wife abandoned her husband on account of his intemperate habits, cruel treatment, and absence from home, and during five successive years resided in an adjoining county, with a second husband, and it did not appear that she had knowledge of the death of her first husband, or that he was not generally well known to be living: Held, not such a continuing absence for five successive years, within the provisions of 2 Rev. Stat. 189, as to render valid the second marriage, and authorize the issuing of letters to the woman as the widow of the second husband. Wyles v. Gibbs, 1 Redf. Sur. Rep. 382. There should be bona fide absence of the absconding person from the State, and without being known to the other party to be living, or at least there should be such an absence from the county as would preclude the idea that he was living after the most careful and diligent inquiry had been made. Ibid. Proof of an earlier ceremonial marriage rebuts the presumption of marriage founded on reputation, cohabitation and social recognition. Decker v. Morton, 1 Redf. Sur. Rep. 477. Acts of administrator wrongfully appointed. The acts of a person wrongfully appointed administrator, are not void, but merely voidable. Griffith v. Frazier, 8 Cranch. 24; see also 8 Metc. 543. Creditor appointed administrator.-Where one or more of the creditors is to be appointed administrator, the principal creditors will be preferred. 1 Williams on Exec. 366; 1 Cush. 525. Right of Husband to Administer.-Proof of desertion, ill-treatment and the like, and even an agreement of separation, are not sufficient to deprive a husband of his right to administer upon his wife's estate. Case of Altemus, 1 Ashm. 49. So, too, if there has been an actual divorce, a mensa et thoro. Ctark v. Clark, 6 Watts & Serg. 85. Where the husband dies without leaving issue and leaves his wife pregnant and she is afterwards delivered of a child, and then applies for letters of administration upon the estate of the child, and the father of the deceased contests the issuance of letters on the ground that the child was not born alive, and the issue is tried, and the probate court finds that the child was born alive, and grants the letters, the judgment of the probate court is evidence upon the question as to whether the child was still-born in a subsequent application of the father of the deceased to contest the account of the administrator, and is conclusive upon that question. Garwood v. Garwood, 29 Cal. 514. Right of brother to administer.-The brother of deceased being entitled to letters of administration on the estate, gave D., a stranger, a writing requesting the court to appoint him administrator. D. applied for letters, annexing to his petition said writing. At the hearing the brother asked leave to withdraw the writing, opposed the appointment of D., and prayed letters to himself: Held, that the brother waived his right, and that having encouraged D. to go to the expense and trouble of applying for letters of administration, he is estopped from withdrawing his assent and waiver, or renunciation. Estate of Kirtlan, 16 Cal. 161. Not of kin. The mere fact that one is not of kin to the deceased, does not incapacitate him to hold the office of administrator. A stranger is legally competent, though the other parties named in section fifty-second of the Act concerning the Estates of Deceased Persons, are entitled to priority. Estate of Kirtlan, 16 Cal. 161. That section of the statute which provides that "any other of the next of kin who would be entitled to share in the distribution of the estate" (subdivision seventh of section fifty-two as it read before the amendment of 1861) shall be entitled to administer, must be construed to mean the next of kin capable of inheriting, or who would be entitled to distribution if there were no nearer kindred. Anderson v. Potter, 5 Cal. 63. The phraseology of the New York statute on the same subject, by which administration is given "to the relatives of the deceased who would be entitled to succeed to his personal estate,' or "who would be entitled to share in the distribution of the estate" (both forms of expression being employed in the same section, 2 Rev. Stat. 3d ed., p. 138, sec. 28), is examined and discussed, and a somewhat different construction given to it in the case of The Public Administrator v. Peters, 1 Brad. 100. The question in that case was whether a relative of deceased who had no interest in the estate (i. e., was entitled to no distributive share), was entitled to administration in preference to the public administrator. And it was held that "a relative who has no interest or no title to a distributive share is to be considered as a stranger." The surrogate says, in the opinion in that case: "The counsel for the administrator contended that this expression "would be entitled," allows any one to administer before the public administrator who by any possible contingency may be entitled to a share at the time of the distribution; and that, any relative, therefore, who may by the decease of the next of kin be placed in the line of succession can administer, because by possibility he may be entitled to share in the distribution. But this is not so. The distributive shares in an estate become vested on the decease of the intestate, according to the relative positions of his next of kin at that time. The rights of all #4 * * * are settled at the time of the decease. The words 'would be' in the statute cannot refer to what cannot possibly happen. The nature of a distributive share is sufficiently contingent to justify and account for the use of the subjunctive form in the expression which defines the class of relatives entitled to administration." 1 Brad. 103.(a.) On a contest for preference as to administration between relatives whose priority is not settled by statute, the single point to be ascertained is, who will be entitled to the surplus of the personal estate. Sweezy v. Willis, 1 Brad. 495. Who are the next of kin is to be determined by the rule of the ecclesiastical law, which in such matters is a part of the common law. Ibid. A person not entitled to administration cannot be joined as administrator with one who is entitled, on the suggestion of the surrogate, without or against the consent of the party entitled. Peters v. Public Administrator, 1 Brad. 200. Public Administrator.-Right to Administer.-The public administrator is an officer of the law. He is entitled to the administration of all estates not otherwise administered, and he has only such powers as are given him by law. Beckett v. Selover, 7 Cal. 215. The public administrator is not entitled to administer upon every estate, and there must be a judicial grant of administration to him in each particular case of which his official commission is not proof, and he must show the grant of administration like every other administrator. Rogers v. Hoberlin, 11 Cal. 120. (a) The same question was raised at the March Term, 1858, of the probate court of the city and county of San Francisco, upon the adverse applications of R. C. Rogers, public administrator, and M. G. Noble, for letters of administration upon the estate of John C. Cabanis, deceased. Noble claimed the issuance of letters to himself as a second cousin of deceased, though not entitled to a distributive share of the estate, there being nephews of the deceased living out of the State. The matter was fully argued by Eugene Casserly and D. Rogers, Esqs., for the public administrator, and E. D. Baker and W. H. Tompkins, Esqs., for Noble. The court (Blake, probate judge) held that the words "next of kin," as used in the seventh classification of persons entitled under our statute to administer, mean the next of kin to the deceased after those before named in the same section. Any person who is in that degree, however remote it may be from the deceased, is entitled to administration if he would be entitled to distribution in case there were no nearer kindred. The persons constituting this seventh class, though often more numerous than those in the preceding classes, are as much as any of them a class by themselves as, really distinct from the mass of the kindred, a nd capable of being ascertained with the like legal and actual precision. "A second cousin may be entitled to administer, because he may be of the next of kin.' But if between him and the first six classes enumerated in the statute there are any of a degree of kindred nearer than himself to the deceased, he is not of the 'next of kin, according to the intendment of the statute. As there are recognized degrees of kindred between those in which the persons named in the first six classes alluded to are placed and the degree to which a second cousin belongs, Noble, in order to entitle himself to administration, should show that there are no persons living belonging to the intermediate degrees. But as it appears in evidence that the deceased left nephews surviving, it is clear that Noble is not, in the sense of the statute, of the next of kin.' His application is accordingly denied, and letters must be granted to the public administrator." Preference of persons equally entitled. In discre tion of court administra tor, when. The public administrator of the city and county of San Francisco can take upon himself the duties of an administrator of a given estate only by virtue of a special grant from the probate court, made upon a petition therefor filed in the matter of such estate. He does not by virtue of his office acquire the right to administer upon any particular estate. Estate of Hamilton, 34 Cal. 464. Persons not Entitled to Administer.—The right of persons entitled to administer on an estate, to have, upon their written request, letters of administration granted to persons not entitled to administer, only exists where there is a vacancy in the administration. Estate of Carr, 25 Cal. 585. Surviving Partner-A surviving partner, though a brother of the deceased, cannot be administrator of the estate. Cornell v. Gallagher, 16 Cal. 367. SEC. 1366. (2 53.) Of several persons claiming and equally entitled to administer, males must be preferred to females, and relatives of the whole to those of the half blood. Statutes of 1851, p. 454, § 53. SEC. 1467. (255.) When there are several persons equally to appoint entitled to the administration, the court may grant letters to one or more of them; and when a creditor is claiming letters, the court may, in its discretion, at the request of another creditor, grant letters to any other person legally competent. When minor enti pointed ad Statutes of 1851, p. 454, § 54; 1863-4, p, 368, § 5. Between brothers, administration will be committed to the one having most interest to execute it faithfully. Moore v. Moore, 1 Dev. N. C. 352. Indebtedness to the estate does not render a person incompetent to administer, nor take away his priority. But where several applicants are equally entitled, such a fact may be taken into consideration by the surrogate in deciding between them. Churchill v. Prescott, 3 Brad. 233. SEC. 1368. (2 57.) If any person entitled to administratled who ap- tion is a minor, letters must be granted to his or her guardministrator. ian, or any other person entitled to letters of administration, in the discretion of the court. Persons in competent Statutes of 1851, p. 454, § 57; 1870, p. 637, § 2. SEC. 1369. (2 55.) No person is competent to serve as to admin administrator or administratrix who, when appointed, is 1. Under the age of majority. ister. 2. Convicted of an infamous crime. 3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. Statutes of 1851, p. 454; 1861, p. 632. See sections 1350 and 1365, ante, and cases cited there. of Pacheco, cited under section 1385, post. See, also, Estate Drunkenness.-An applicant for letters of administration will not be precluded from receiving them by reason of his intemperance, unless it be of such a gross character as would warrant overseers of the poor in designating him an habitual drunkard, or a jury in adjudging him to be so. Elmer v. Kechele, 1 Redf. Sur. Rep. 472. Same doctrine held in Goods of Kechele, 1 Tucker's Sur. Rep. 52. Improvidence and want of understanding, what.—Improvidence and want of understanding, in order to disqualify for administration, must amount to a lack of intelligence, and are not to be presumed from a simple lack of information upon legal subjects or business matters. A creditor, in such a case, must look to the sureties. Goods of Shilton, 1 Tucker's Sur. Rep. 73. ap SEC. 1370. (2 56.) A married woman must not be pointed administratrix. When an unmarried woman appointed administratrix, marries her authority is extinguished. Statutes of 1851, p. 454; 1865-6, p. 765; 1869-70, p. 636; 1871-2; Feb. 13, 1872. See section 1352, ante. A legatee who is named as executor in a will which has been declared null and void by a decree of the surrogate, and who has appealed from such decree, has sufficient interest in the estate to enable him to make an application for the removal of the administratrix, on the ground of her marriage since her appointment. Newhouse v. Gales, 1 Redf. Sur. Rep. 217. Married woman not to be administratrix. ARTICLE IV. PETITION FOR LETTERS AND ACTION THEREON. SECTION 1371. Applications, how made. 1372. When granted. 1373. Notice of application. 1374. Contesting applications. 1376. Evidence of notice. 1377. Grant to any applicant. 1978. What proofs must be made before granting letters of adminis |