were issued and served, and both petitions were heard on April 11, 1908. On the latter date John J. Daggett filed with the court a written request, alleging that he was a broth er of deceased, resident of the state of Idaho, and in every way competent and entitled to administer the estate of his deceased brother, and thereupon joined in the petition of Jennie S. Thomas, requesting the appointment of Fred K. Bressler as administrator. At the same time Daggett filed written objections to the appointment of Henry H. Bangs. After hearing the case the probate judge on April 27, 1908, made and entered an order denying the petition of Jennie S. Thomas, and granting the petition of Ella Sue Matthews, and, in accordance therewith, appointed Henry H. Bangs as administrator of the estate of George W. Daggett. Jennie Under the provisions of section 5366, Rev. St. 1887, "when letters of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother or sister of the intestate, any one of them who is competent or any competent person at the written request of any of them, may obtain the revocation of the letters and be entitled to the administration by presenting to the court a petition praying the revocation and that letters of administration may be issued to him." 5. EXECUTORS AND ADMINISTRATORS (§ 17*)RIGHT TO APPOINTMENT AS ADMINISTRATOR. Section 5366, Rev. St. 1887, must be construed in view of and in connection with sections 5351 and 5365, and, where a number of persons are requesting or petitioning the appointment of strangers or persons falling under subdivision S. Thomas and John J. Daggett thereupon 11 of section 5351, and one only of the persons appealed to the district court, where the making such requests or petitions falls within case was again heard, and the judgment of the classes of preferred persons under section 5366, Rev. St. 1887, and the first five subdivisions of section 5351, such person is entitled to nominate any competent person for administrator, and it is the duty of the court to appoint the person so nominated. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 57; Dec. Dig. § 17.*] (Syllabus by the Court.) Appeal from District Court, Latah County; Edgar C. Steele, Judge. Petition by Jennie S. Thomas for the appointment of Fred K. Bressler, as administrator of the estate of George W. Daggett, deceased. Thereafter Ella Sue Matthews filed a petition, praying that letters of administration might issue to Henry H. Bangs, and subsequently John J. Daggett joined in the petition of Jennie S. Thomas, and filed objections to the appointment of Henry H. Bangs. The probate judge denied the petition of Jennie S. Thomas, and granted the petition of Ella Sue Matthews, and Jennie S. Thomas and John J. Daggett appealed to the district court, where the judgment was affirmed, and, from such judgment and an order denying a new trial, they appeal. Reversed and remanded. On March 20, 1908, Jennie S. Thomas filed a petition in the probate court of Latah county, alleging that George W. Daggett died intestate in the county of Latah, state of Idaho; that the petitioner was his sister, and praying for the appointment of Fred K. Bressler as administrator of his estate. Notice was given as required by law, and on March 31, 1908, Ella Sue Matthews filed her petition, alleging that she was a married woman and a step-daughter of the deceased, and setting up a purported contract between herself and George W. Daggett, whereby she was to receive a certain share in the estate, and praying that letters of administration might issue to Henry H. Bangs. Notices the probate court was affirmed. They thereupon appealed to this court from the judgment and an order denying their motion for a new trial. Both Bressler and Bangs were strangers to the estate. Morgan & Morgan, for appellants. Forney & Moore, for respondents. AILSHIE, C. J. (after stating the facts as above). The first question to be determined in this case is: Can one who is himself entitled to administer upon an estate by filing a request for the appointment of another thereby advance the one for whom the request is made to the same rank and class as the one making the request? Section 5351, Rev. St. 1887, reads as follows: "Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order: (1) The surviving husband or wife or some competent person whom he or she may request to have appointed; (2) the children; (3) the father or mother; (4) the brothers; (5) the sisters; (6) the grandchildren; (7) the next kin entitled to share in the distribution of the estate; (8) any of the kindred; (9) the public administrator; (10) the creditors; (11) any person legally competent. If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed, administrator of his estate." John J. Daggett, a brother of the deceased, was himself entitled to administer under the provisions of subdivision 4 of the foregoing statute. His sister, Jennie S. Thomas, if an unmarried woman, was entitled to administer under subdivision 5 of that section. Bangs and Bressler would both come under the provisions of subdivision 11, and belong 1365 (Code Civ. Proc. Cal.) petitioned for the appointment of one coming under the last class, being merely "a person legally competent." The superior court denied the request and appointed the public administrator, and the Supreme Court affirmed the judg ment, holding that the appointment was in the discretion of the court. The court also held in the Healey Case that section 1379, Code Civ. Proc. Cal., which is identical with our section 5365, is not mandatory, but “imposes a discretion as to the granting of such request in the court." See, also, In re Dorris' Estate, 93 Cal. 611, 29 Pac. 244; In re Bedell's Estate, 97 Cal. 339, 32 Pac. 323; In re Brundage's Estate, 141 Cal. 538, 75 Pac. 175. to the class designated as “any person legal- | case heirs falling under class 7 of section ly competent." If one who belongs to a preferred class is entitled by filing his written request to advance one who belongs to class 11 to the rank of the one making the request, then the appellants' position on this point is correct. If not, the respondents are correct. The language itself of section 5351 convinces us that appellants' contention is untenable. Subdivision 1 designates the persons first entitled to administer, namely, "the surviving husband or wife, or some competent person whom he or she may request to have appointed." It will be noticed that the language composing the latter part of this subdivision is not found in connection with any of the other ten subdivisions. In other words, the statute itself specifically authorizes a husband or wife, by designa. tion and request, to advance any competent person to his or her own rank, but it does not authorize any one of any of the other classes, by request or otherwise, to advance a person to his or her rank. If the expression, "or some competent person whom he or she may request to have appointed," had been intended to apply to each of the 11 subdivisions, that language would have been placed in the body of the section preceding the subdivisions, in which case it would have applied to all the subdivisions. Appellants contend, however, that under the provisions of section 5365 "administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court." We think this section means to provide for the appointment of any competent person upon the request of some one entitled thereto where no application has been made by some person entitled to administer under the statute. Under this section of the statute, it is a matter addressed to the sound discretion of the court, and is not an arbitrary or mandatory provision or requirement. Section 5351 of our Revised Statutes of 1887 corresponds identically with section 1365 of the Code of Civil Procedure of California. Estate of Morgan, 53 Cal. 243, was a case where the appointment of a "person legally competent" had been requested by the next of kin, and the probate court had denied the request and appointed the public administrator. The Supreme Court in passing on the matter said: "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; and it not appearing that the probate court in refusing to appoint Croly has abused the discretion confided to it in terms by the statute, the order will not be disturbed, but must be affirmed here." The Morgan Case was cited, considered, and approved in Re Healey's Es The peculiar facts of this case, however, make it necessary for us to consider and construe section 5366, Rev. St. 1887, in connection with the foregoing statutes. That section is as follows: "When letters of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother or sister of the intestate, any one of them who is competent, or any competent person at the written request of any of them, may obtain the revocation of the letters and be entitled to the administration by presenting to the court a petition praying the revocation and that letters of administration may be issued to him." By the provisions of this section, where any person not a member of one of the first five classes enumerated in section 5351, supra, has been appointed administrator, the appointment may be revoked on the application of any member of these five classes who is himself competent to administer, or upon the application of his or her nominee, and thereupon letters shall be granted to some one of the members of these five classes petitioning therefor or some competent person designated by a member of one of these classes. It therefore becomes necessary to determine whether or not any of the parties to this controversy come within the designated classes. We turn to the record, and find that Jennie S. Thomas was not competent because she was a married woman, and the same is true of Ella Sue Matthews. Henry H. Bangs, who was appointed, was not a member of any one of the first five classes designated by section 5351. In the language of section 5366, he was not "the surviving husband or wife, child, father, mother, brother or sister of the intestate." Bressler belongs to the same class as Bangs. John J. Daggett, one of the appellants, is a brother of the deceased, and was at the time of this application in all respects competent and qualified for appointment as administrator of the estate of his deceased brother. He was also a member of class No. 4. It therefore follows that under the provisions of section 5366, above quoted, either John J. Daggett or any competent person petition for the revocation of the letters of the request of John J. Daggett, a brother of administration issued to Henry H. Bangs, the deceased, for the appointment of Bressand thereupon have letters issued to himself ler, did not in any way add to to the force of or such nominee. In view of the provisions the application of Jennie S. Thomas, or take of this statute, it would be useless for the away from the probate court the discretion court to exercise his discretion in the first vested in it under the provisions of Rev. St. instance in appointing an administrator, as 1887, § 5365, and that the provisions of seche would immediately thereafter be compelled tion 5366 have no application to a hearing under the provisions of this statute to re- for letters of administration in the first invoke the appointment and appoint the person stance, and only apply when letters have nominated by John J. Daggett. We think been issued, and the petition of any one of these provisions of the statute should all be the class enumerated in said section or the construed together, and, since John J. Dag- nominee of such person is presented for the gett was the only one of the contesting par- revocation of letters already issued, and the ties in this matter who was competent or request to issue letters to the applicant or qualified to administer under the first five the nominee of such applicant. As stated in subdivisions of section 5351, and was also the the principal opinion, however, courts will only party who was entitled under section not do or permit to be done vain and useless 5366 to have letters revoked in case they were things when they can be avoided by the apgranted to a person not one of the foregoing plication of the law to the facts as they are classes, it follows that he was entitled to presented to the court. While it is true that nominate in writing any competent person section 5366 in terms applies when letters whom he might choose for appointment as have already been issued, yet, as stated in administrator, and that he was thereupon en- the principal opinion, when the facts containtitled to have such person appointed. This ed in section 5366 are presented to the prowould not be true if John J. Daggett were bate court upon the hearing of a petition for not one of the persons designated as being letters, the court will construe said section entitled to have letters revoked. This phase in connection with sections 5365 and 5351, of the question was construed in Re Healey's and not make an appointment of an adminisEstate, supra, in a case where the person trator, which under the provisions of section making the nomination was not a member of 5366 would immediately be subject to rethe first five classes; but, on the contrary, was moval upon the application of any of the a member of class No. 7. The court there class enumerated in said section or the nomsaid: "The power to procure a revocation of inee of such person. When the conditions letters, and the appointment of a nominee provided for in section 5366 are presented to after letters have been issued to one not in the court at the original hearing for letters, the first five classes enumerated in section then it is the duty of the probate court to 1365, Id., is accorded to the members of those construe said section in connection with the five classes and to their nominees by section other sections, and issue the letters to the 1383, Id. But it is here to be noted that the person qualified to receive the same under the members of class 7, to which the McCabes provisions of said section, and not do a usebelong, are not empowered to nominate un- less and unnecessary thing by appointing der section 1365, Id., nor to secure a revocasome other person whose removal would be tion of letters under section 1383, Id. Their compulsory upon the application of any one rights, then, are wholly embraced within sec- of the class or the nominee thereof mentiontion 1379, Id., upon the construction of which ed in said section 5366. this question must depend." We conclude, therefore, that John J. Daggett being the only petitioner or applicant who was competent and qualified to administer under the first five subdivisions of section 5351, and also under section 5366, that his nominee, being otherwise a competent person to administer, should have been appointed, and that it was error to refuse to make such appointment. The judgment must be reversed, and it is so ordered, and the cause is remanded for further proceedings in accordance herewith. Cost in favor of appellants. SULLIVAN and STEWART, JJ., concur. On Petition for Rehearing. STEWART, J. The respondents have filed a petition for rehearing. It presents but one question which we deem of sufficient import The discretion, therefore, vested in the probate court under the provisions of section 5365, ceases to be a discretion, and the duty becomes absolute when the application is made by any of the class or the nominee of such person mentioned in said section 5366. This construction in no way affects the provisions of section 5363, Rev. St. 1887, as in this latter section the letters of administration must be granted to any applicant, though it appears there are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves. In other words, the letters must be granted to the applicant, unless the person who has a better right thereto appears and asks for letters or nominates some one under the provisions of section 5366. This construction harmonizes all these different sections of the statute with reference to letters of administration, and making the appointment not to do a vain make an appropriation for the payment of and useless thing. said claim of $17.50. Petition for rehearing is denied. AILSHIE, C. J., and STEWART, J., con AILSHIE, C. J., and SULLIVAN, J., con- cur. cur. SULLIVAN, J. This is a proceeding under section 10, art. 5, Const. Idaho, to obtain a recommendatory decision of this court touching the justice of a claim asserted by the plaintiff against the state. It appears from the complaint and the testimony introduced on the hearing that the plaintiff, Theodore Daniels, was employed by the state of Idaho in the capacity of superintendent of the state capitol grounds of the state of Idaho; that he had been employed in that capacity for a number of months, and that the state had paid him $75 a month for his services; that he performed services from the 1st day of January, 1907, to the 8th day of January, 1907; that he was discharged as such superintendent on the 8th day of January, 1907; that thereafter he filed his claim in the office of the Auditor of the state for the sum of $17.50, which was at the rate of $75 per month, or $2.50 per day for said seven days, which voucher or claim was referred by the State Auditor to the state board of Examiners, and the said claim was disallowed and returned to the State Auditor on the 23d day of January, 1907. On the hearing the state introduced no evidence whatever showing the grounds for the disallowance of said claim. There is no conflict in the evidence as to the fact that the petitioner performed services for the state as such superintendent for said seven days. That being true, the state as a matter of right ought to pay for such services. We therefore recommend that the Legislature STATE v. CHURCHILL. (Supreme Court of Idaho. Jan. 4, 1909.) 1. ANIMALS (§ 45*)-MALICIOUS KILLING OF DOGS-GIST OF OFFENSE-MALICE. In a prosecution under section 7153, Rev. St. 1887, for the malicious killing, maiming, or wounding of a dog, malice is the gist of the action, and must be established to the satisfaction of the jury beyond a reasonable doubt, in order to justify a conviction. [Ed. Note. For other cases, see Animals, Cent. Dig. § 125; Dec. Dig. § 45.*] 2. ANIMALS (§ 45*)-MALICIOUS KILLING OF DOGS PRESUMPTIONS AND BURDEN OF PROOF-MALICE. In a prosecution for maliciously killing, wounding, or maiming dogs, the state must either show that the defendant entertained malice against the owner of the dogs, or that the killing, wounding, or maiming was characterized by such wanton and reckless disregard of the rights of property in others as to raise the presumption of malice from the manner of the commis sion of the act. [Ed. Note.-For other cases, see Animals, Cent. Dig. & 125; Dec. Dig. § 45.*] 3. ANIMALS (§ 94*)-DOGS CHASING STOCKRIGHT OF OWNER TO PROTECT. Where trespassing dogs are chasing, worrying, and frightening hogs and cattle, the owner of the premises in attempting to remove and eject the dogs therefrom has a right to act upon appearances. In other words, if there is apparent impending danger to his live stock, he is justified in the use of such force in ejecting the dogs as a reasonably prudent man would use under like circumstances in defense and protection of his property. [Ed. Note. For other cases, see Animals, Cent. Dig. § 371; Dec. Dig. § 94.*] 4. ANIMALS (8 45*)-MALICIOUS KILLING OF DOGS-EVIDENCE-ADMISSIBILITY. In such case the evidence of experts as to the habits and traits of the particular breed of dogs, to the effect that they would not in fact harm or injure domestic animals, is inadmissible where the evidence as to the occurrence is direct and not circumstantial, unless it appear that the defendant at the time had knowledge of such habits and traits. [Ed. Note.-For other cases, see Animals, Dec. Dig. § 45.*] 5. ANIMALS (8 45*)-MALICIOUS KILLING OF DOGS-EVIDENCE-ADMISSIBILITY. The rule applicable in civil actions for damages, allowing the introduction of evidence showing the pedigree, traits, habits, and reputation of the particular dog killed, is not applicable in a criminal prosecution for maliciously killing dogs, unless knowledge of such facts is brought home to the defendant. [Ed. Note.-For other cases, see Animals, Dec. Dig. § 45.*] 6. ANIMALS (§ 94*)-DOGS WORRYING STOCKRIGHT OF OWNER TO PROTECT. Even where defendant had knowledge of the traits and habits of the particular breed of dogs, and that such dog would not in fact kill or maim a domestic animal, if, in fact, the dog was at the time harassing, worrying, and annoying gravid animals in such a manner as would likely cause his pecuniary loss, he will be justified in using such force as is necessary to eject the dogs from the premises and cause a cessation of the injuries. [Ed. Note.-For other cases, see Animals, Cent. Dig. § 371; Dec. Dig. § 94.*] 7. ANIMALS (§ 45*)-MALICIOUS KILLING OF [Ed. Note. For other cases, see Animals, 8. ANIMALS (§ 45*)-"MALICIOUS" KILLING. In Rev. St. 1887, § 7153, making a person who shall "maliciously" kill or maim any animal guilty of a misdemeanor, the word "malicious" is not equivalent to the word "wrong; ful," but involves crime which the latter word does not necessarily do. [Ed. Note.-For other cases, see Animals, Dec. Dig. § 45.*] Appeal from District Court, Washington County; Ed. L. Bryan, Judge. L. Churchill was convicted for the malicious killing of dogs, in violation of Rev. St. 1887, § 7153; and, from the conviction and an order denying a new trial, he appeals. Reversed. Lot L. Feltham and B. S. Varian, for appellant. J. J. Guheen, Atty. Gen., and B. S. Crow, for the State. ran. January 12, 1908, the complaining witness, Kelly, started out with a pack of 13 hounds to hunt coyotes. The defendant, his wife, and two hired men testified that some time before noon that day a number of these hounds came onto his place, and ran through his corral and barn lot, apparently chasing after his cattle and hogs, and frightening the cows and likewise the hogs; that defendant chased the dogs away several times with sticks and stones. In the afternoon they appeared on several occasions, running through the corral and barn lot, and apparently after the cows and hogs, bawling and yelping as they The defendant, who was at work on a building near the barn, got down from his work several times and drove the dogs away, and, finally, when they were chasing some of his hogs, he got his gun and took several shots at the dogs, killing one and wounding others. Two of the dogs that were wounded were produced in court, and the defendant, his wife, and the two hired men testified that to the best of their knowledge these were the same dogs that were on defendant's ranch at several different times on the 12th day of January, the day on which the shooting occurred. The defendant owned a farm of some 300 acres, and was engaged chiefly in the dairy business. He also had a number of hogs and other live stock on the place. The leading facts in the occurrence are covered by the defendant's evidence, which is substantially corroborated by that of his wife and hired men. It is as follows: "Our cows were in there, and, as many of them were heavy with calf, I had been watching them very carefully. When the dogs ran in there AILSHIE, C. J. The defendant was pros-barking, I got down and ran there as quick ecuted on the charge of malicious mischief for shooting, maiming, and killing dogs belonging to one John A. Kelly, the complaining witness. The jury returned a verdict against the defendant, and he was thereupon sentenced to pay a fine. He moved for a new trial, and his motion was denied, and he thereupon appealed from the judgment and order denying his motion. This prosecution is founded on section 7153, Rev. St. 1887, which is as follows: "Every person who maliciously kills, maims or wounds any animal, the property of another, or who maliciously and cruelly beats, tortures or injures any animal, whether belonging to himself or another, is guilty of a misdemeanor." The chief contention urged is that the evidence wholly fails to establish malice. In the consideration of both the facts and the law in the case, it should be borne in mind that this is a criminal prosecution, and not a civil action for damages, and what may hereafter be said in this opinion will be with special reference to the status of the defendant in his conduct toward the dogs as viewed by the criminal law. It appears that on as I could. At that time they had the cattle Not |