ond request from withdrawing his waiver or retracting his renunciation.

I do not think that the Estate of Morgan, upon which counsel for the public administrator so strongly relies, can be properly applied to the case at bar. Certainly not as to the first reason assigned by the supreme court (see 53 Cal. 243), and the second reason seems to have been hypothesis purely. In that case the supreme court said that the fact that "Croly had been recommended to the probate court by the next of kin as being a suitable person to administer upon the estate (under the Code of Civil Procedure, section 1379, as amended in 1878), did not give him any preference over the public administrator in claiming the administration of the estate, and this for two reasons:

"1. The distributees and next of kin in this case are married women, and incapable, therefore, themselves, of administering upon the estate, and their expressed preferences for the appointment of Croly, as set forth in their petition filed in the probate court, were of no legal consequence whatever.

"2. But had it been otherwise in this respect, and had the next of kin been laboring under no such disability, their petition requesting the appointment of Croly was addressed to the mere discretion of the probate judge; it did not operate to supersede the claim of the public administrator, otherwise established under the statute, to receive letters of administration."

Application of Gunther granted.

The Principal Case was Affirmed by the supreme court in 97 Cal. 339, 32 Pac. 323.

A Person Nominating Another for Appointment as Administrator must himself be competent to fill the office, except that a surviving husband or wife has an absolute right to nominate a fit person to serve in his or her stead. It follows that a nonresident father or brother of a decedent is not entitled to nominate an administrator of his estate; but that a surviving spouse, though incompetent to act as administrator because of nonresidence, is entitled to nominate sorne person competent for the position: Estate of McDougal, 1 Cof. Pro Dec. 109, and note; 1 Ross on Probate Law and Practice, 341.

ESTATE OF SHERWOOD CALLAGHAN, DECEASED.

[No. 11,405; decided November 25, 1892.]

Accounts. The Statutes do not Require that Any Particular Designation should be given by executors to any account which they may file; the code leaves the nature of the account to be determined by its intrinsic qualities and contents, and not by any title or heading which may irrelevantly be placed upon it.

Final Account and Final Settlement Defined.-A final account, except as the term is used in Code of Civil Procedure, sections 1652, 1653, merely means a complete account of all matters necessary for the complete administration of the estate, and a "final settlement" means such a settlement as completes all matters which the court should act upon to cover all the true functions of administration, namely, which provides for the payment of all presented debts, which passes upon all receipts and disbursements up to the date of the payment of the debts and the expiration of the normal period of administration, and puts the court in possession of data sufficient to determine and ascertain the distributable assets.

Final Account.-The Account of an Executor may be regarded as final, although it does not set forth the amount of his commissions or the amount of the attorney's fees, and although there have other sums accrued to the estate since the filing of the account.

Account-Only One is Necessary. In ordinary estates there is no necessity for more than one account, which is a final or complete account.

Account. The "Finality" of the Account of an Executor is to be determined by reference to its completeness and to the circumstances of the estate, and not by reference to the title which the executors choose to apply to it.

Account.-A "Final" or Second Account is not contemplated by the code, except in the single case where the court, on settling the original or general account, determines that the estate is not ready for closing, and fixes a limit for the rendering of another account.

Account.-The Term "Final Account," as used in Code of Civil Procedure, section 1652, applies only to the cases mentioned in the last half of section 1651; and the term "final settlement," as used in section 1665, applies not specially to the settlement of a "final account" (in the sense of a second account, as prescribed by section 1652), but to any settlement of account which completes the payment of the debts and determines the distributable assets.

Accounts.-Three Classes of Notices of the Hearing of Accounts are provided by the code: 1. Where the account is filed by itself, notice must be given as prescribed by Code of Civil Procedure, section 1633; 2. Where the petition for distribution is filed by itself, notice must be given as prescribed in Code of Civil Procedure, section 1638;

3. Where the account and distribution are filed together, the notice must be given as prescribed in Code of Civil Procedure, section 1634.

Sherwood Callaghan died on September 14, 1891, leaving a will dated January 27, 1891, in which he named his mother, Annie Callaghan, executrix, and his brother, Daniel T. Callaghan, executor. On petition filed on September 22, 1891, letters testamentary were issued to the executor and executrix on October 20, 1891.

On October 19, 1892, the executor and executrix filed an account which they denominated a "First Annual Account." A day was fixed for the hearing of the account, and notice given of such hearing. On October 24, 1892, the devisees and legatees named in the will filed a petition for distribution, and this petition was set for hearing at the time fixed for the settlement of the account, and notice thereof was given. The account was settled on November 4, 1892. The hearing of the petition for distribution was postponed to a later day, and, upon such hearing, counsel for the executor and executrix objected thereto on the grounds that the application was premature and that the notice of the hearing was not in compliance with the provision of the code on the subject.

Chas. F. Hanlon, for the executor and executrix.

Harold Wheeler, for the devisees and legatees.

COFFEY, J. The questions to be determined are whether there has been a "Final Settlement of the Accounts of the Executor" within the meaning of section 1665, Code of Civil Procedure, so as to entitle the legatees to distribution, and whether notice of the settlement and of the distribution has been given in such a way as to make regular a degree of distribution at the present time.

1. What is a "final" account?

The first question resolves itself into a question as to what is meant by "Final Settlement of the Accounts" in section 1665. A comparison of the different sections of the code will make it clear that such a "final settlement" has now occurred.

The account filed herein was designated by the executors as their "First Annual Account." There is nothing in the code

to warrant such a title being given to this, or, indeed, to any account. No reference is made in the code to an "annual account"; nor is there any requirement anywhere that a particular designation should be given by the executors to any account which they may file. The code leaves the nature of the account to be determined by its intrinsic qualities and contents, and not by any title or heading which may irrelevantly be placed upon it.

We find no decision of our own supreme court particularly defining the phrase "final settlement." Looking into the use of the phrase in other states than our own, we find that it has two meanings, according to the procedure in vogue where it is employed. For instance, in the American and English Encyclopedia of Law, title "Executors and Administrators," subtitle "Account" (volume 7, page 442, first edition), we find the following statement, accompanied by references to many cases outside of California, to wit: "A partial or annual account is only a judgment de bene esse, often rendered ex parte, and only prima facie correct. On final settlement it may be opened to correct errors due to fraud or mistake, although the error was not excepted to or appealed from when the partial account was rendered. After the final balance has been ascertained by the accounting, a decree of distribution is regularly in order." Evidently it is not in this sense that the phrase "final account" or "final settlement" is used in our own code; for the settlement of any account filed by an executor in our state is final and conclusive in the sense referred to in the above quotation Code Civ. Proc., sec. 1637. The above quotation and the definition therein contained applies, therefore, only to those states in which an ex parte rendering of an account without citation or notice to the parties interested is permitted. For instance, in New York, accounts are habitually rendered and accepted by the surrogate without notice and subjected to scrutiny only at a later date when "final settlement" of that or of all of the accounts is asked for and notice is given. Dayton on Surrogates, page 463: "The finality intended by the term 'final settlement' refers to the conclusive character of the accounting, which, being made on citation to all parties in interest, is a final and conclusive adjustment up to that period."

The foregoing references help us only by showing what the phrase "final settlement," as used in our code, does not mean. In another quarter we find an apt definition applying directly to the use of this phrase in our own code. In Anderson's Dictionary of Law, title "Account," we find: "First Account; Partial Account; Final Account. Designate the number or completeness of accounts presented to the court for confirmation." The examination of the different sections of our code makes it clear that it is in this sense that the term is used by us, and that a "final account" (except as used in sections 1652 and 1653, of which we will speak later), merely means a complete account of all matters necessary for the complete administration of the estate, and that a "final settlement" means such a settlement as completes all matters which the court should act upon to cover all the true functions of administration, namely: which provides for the payment of all presented lebts, which passes upon all the receipts and disbursements up to the date of the payment of the debts and the expiration of the normal period of administration, and puts the court in possession of data sufficient to determine and ascertain the distributable assets. If this is the meaning of the term "final settlement," as used in our code, it is evident that the recent settlement of the account filed herein on October 19th was a "final settlement," and that the estate is therefore ready for distribution.

It is admitted, or, at any rate, clear from the record herein, that when this account was filed, on October 19th, the estate was ready for a "final account," or for a "final settlement" of the accounts. All of the property had been administered and reduced to possession by the executors; all claims presented had been paid; the time for presentation of claims had expired sixty days previously; there was nothing further to be done by the executors by way of completing their administration, except to render their account. Suppose, now, that the executors had, on October 19th, actually desired to close up the estate and to render a "final account" in the manner required of them by the statute. Suppose that they had, on October 19th, rendered an account which they designated a "final account." In what respect would that account have differed from the account which they actually did render?