and county of San Francisco. Wherefore, he asked that the letters of administration issued to A. C. Freese be revoked, and letters of administration, with the will annexed, be issued to petitioner.

Freese was duly cited to appear and answer. He filed no answer, but did appear and was allowed to contest the right of the petitioner. Petitioner bases his claims upon the language of section 1383 of the Code of Civil Procedure, and succeeding sections. He contends that under these provisions his right to the relief asked is absolute, provided only that he be found to possess the statutory competency.

The first question to be considered is this: Has section 1383 any application where the decedent has left a will? By its terms it might seem to have been intended to apply only in cases of intestacy, but in Estate of Pacheco, 23 Cal. 476, it was applied to a case in which, like the present, there was a will, and in which the other material facts were substantially the same. It is true that the question of its applicability, although argued by counsel, was not expressly adjudicated, but the decision rests upon the tacit assumption by the court that the right to administration in the case provided for is unaffected by the fact that there is a will. In itself this decision may not be of much weight as an authority, but it was made many years ago, and has never been overruled or questioned. Meantime, the legislature has revised the statute, and re-enacted this particular section in its old form, and we are bound to suppose with the intention that it should be construed now as it was construed before the revision. In my opinion there is no reason for changing its construction. If it be said that the decision in the Pacheco case disregarded the terms of the law, it may be answered that the court was fully justified by the whole tenor of the statute and the manifest policy of the legislature, in respect to the choice of administrators, in departing from a literal construction of this particular section. By the old Probate Act-as by the corresponding sections of the code-the legislature

had prescribed the order in which the relatives and creditors of an intestate and other persons should be entitled to administer, and had made the same order of preference applicable to cases in which executors named in a will failed to qualify or ceased to act. These various provisions are found in sections 1350, 1365, 1425, and 1428 of the Code of Civil Procedure. The policy of the law is clear. In the absence of any designation of an executor by the decedent, certain persons in a certain order have the right to administer. When executors have been appointed by the decedent, if they cannot act, or will not act, or are not allowed to act, then the same persons in the same order are entitled to letters of administration with the will annexed. Failing the choice of the decedent, the law enforces its choice.

And so of the case where letters of administration have been granted to some person other than the husband or wife or child of the decedent, it makes no difference whether there was a will or not, if one of the persons preferred by the law asks that the administrator (with or without the will annexed) be removed and himself appointed, his request should be granted if he is legally competent to discharge the trust.

It is argued that this conclusion does not follow, and that this section 1383 does not apply in cases of testacy, because section 1354 is specially applicable to such cases, and confers upon the court a discretionary power to remove or retain the administrator with the will annexed as it may deem proper. But I do not think section 1354 applies where the petition for the removal of the administrator with the will annexed is based upon a right to administer conferred upon the petitioner by the statute. If the petitioner has no other right to administer except such as flows from his designation by the decedent, then section 1354 applies, and the granting or refusal of the petition rests in the sound discretion of the court. But when the petition is based upon the statutory right to administer, then section 1383 applies, and if the petitioner is not incompetent by rea

son of some statutory disqualification, the court has no discretion to deny his petition.

But although the objection that section 1383 does not apply is the point principally relied on by respondent to support the order of the superior court denying the petition of Li Tai Wing, it does not appear that this was the ground of the decision. The superior court found that Li Tai Wing was not competent, and that he had been previously adjudged incompetent to discharge the trust, and on these grounds denied his petition. The question is whether the evidence sustains these findings.

In my opinion it does not. The only evidence of incompetency was directed to the point that the petitioner had not sufficient understanding (Code Civ. Proc., sec. 1350), and it only proved that he could not speak the English language, and was not instructed as to the constitution of the state.

These facts do not show lack of understanding, and the other evidence showed that the petitioner was a man of intelligence and education.

Nor was there any prior adjudication of want of understanding. The petitioner had made an application under section 1354, which had simply been denied without any reason assigned and without any finding of fact. The denial of the former petition does not imply a finding of incompetency, because there are various other grounds upon which it might have been denied. (Code Civ. Proc., sec. 1911.)

The order appealed from is reversed.

VAN FLEET, J., MCFARLAND, J., and HENshaw, J., concurred.

Rehearing denied.

[No. 19439. Department One.-August 7, 1895.]

SAN BERNARDINO INVESTMENT COMPANY, RESPONDENT, v. SAMUEL MERRILL, APPELLANT.

CORPORATION-LEVY OF ASSESSMENT-SUBSCRIPTION TO STOCK-CONDITION PRECEDENT-PLEADING.-In the absence of any provision to the contrary a corporation cannot levy an assessment upon its capital stock until after the whole amount thereof has been subscribed; but, under section 331 of the Civil Code, which provides that assessments may be levied after one-fourth of the capital stock has been subscribed, for the purpose of paying expenses, conducting business, or paying debts, the subscription of one-fourth of the capital stock is a condition precedent in this state to the exercise of the power given by the statute to levy an assessment, and, in order that a complaint by the corporation to collect an assessment should show a right to recover, it is necessary to allege that one-fourth of the capital stock has been subscribed. ID.-ACTION TO RECOVER ASSESSMENT STRICT COMPLIANCE WITH STATUTE.-Where a corporation seeks to recover the amount of an assessment levied, not by virtue of any contract of subscription on the part of the defendant, but solely by virtue of the obligation against him which is created by the statute, a strict observance of the statutory mode and provision is esential to its recovery. ID.-FAILURE TO PUBLISH NOTICE OF DELINQUENT SALE LOSS OF JURISDICTION.-Where the secretary of a corporation is not otherwise ordered by the board of directors, it is his duty to publish the notice of sale for delinquent assessments at least fifteen days prior to the day appointed by the board of directors for such sale, and, by failure to make publication of a delinquent sale for such period, the board loses all jurisdiction to sell the stock for the delinquent assessment, unless they shall begin anew all previous proceedings and publication subsequent to the levy of an assessment as authorized by section 346 of the Civil Code. ID.-ELECTION TO WAIVE FURTHER PROCEEDINGS OTHER THAN BY ACTION. Where the board of directors has lost jurisdiction to take further proceedings for the collection of a delinquent assessment by failure to make publication of the delinquent sale, the condition under which the statute authorizes it to elect to proceed by action to collect the delinquent assessment does not exist, and there are no further proceedings which the board can waive under section 349 of the Civil Code, and there can be no cause of action to recover an assessment in such case. ID.-NATURE OF WAIVER-LOST RIGHT.-Waiver is a voluntary act, and implies an election by the party to dispense with some thing of value, or to forego some advantage which he might at his option have demanded or insisted upon, and there can be no waiver of a right that has been lost. ID.-ELECTION OF REMEDIES.-A right to elect between remedies which is conferred upon the condition of relinquishing one of the remedies by some positive act must be exercised while both of the remedies are open, and, unless there is a remedy to relinquish, there is no place for an election.

APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial. GEORGE E. OTIS, Judge.

The facts are stated in the opinion of the court.

Goodcell & Leonard, and John W. Craig, for Appellant.

An assessment cannot be collected until after onefourth of the capital stock has been subscribed, and such subscription must be alleged in an action upon the assessment. (Civ. Code, sec. 331.) The complaint is insufficient in not showing that publication was made fifteen days prior to the day fixed for the sale. (Civ. Code, sec. 339.) Having lost jurisdiction, the board could not waive delinquent sale, but must have republished. (Civ. Code, secs. 346, 349.)

Rolfe & Rolfe, for Respondent.

The board properly elected to waive further proceedings. (Civ. Code, sec. 349.)

HARRISON, J.-The plaintiff made an order March 11, 1892, by which it levied an assessment of $1.50 per share upon its capital stock, payable on or before the 18th of April, and, providing that any stock upon which such assessment should remain unpaid on that day should be delinquent and sold at public auction May 7, 1892. Under the directions of the secretary this notice was published in a newspaper of general circulation, in the county of San Bernardino, once a week for four successive weeks, commencing March 18, 1892, and on the same day a copy thereof was sent by him by mail to each stockholder. On April 25th, the board of directors of the plaintiff passed a resolution, by which it elected to waive further proceedings for the sale of the stock on account of any delinquency in paying the assessment, and to proceed by action to recover the amount thereof. The defendant was the owner of 1,025 shares of the capital stock of the plaintiff standing in his name upon its books,