In re Taylor's Estate, 61 Nev. 68, 114 P.2d 1086 (1941):
We think the better reasoning to be that a court has discretion to act and refuse to appoint one otherwise preferred by statute if a statutory disqualification is clearly made to appear by competent and substantial proof, and that the same strict rule that the findings of the court must be within the issues formed cannot be applied in probate proceedings as they must be in the ordinary civil proceedings. An extreme case serves to illustrate the point we are endeavoring to make. Suppose issues have been formed relative to disqualification on the ground of drunkenness and want of integrity, and upon the hearing these charges are not sustained, but it is made to clearly appear from evidence introduced that the party was unable to execute the duties of the trust by reason of a want of understanding because of some form of insanity. Could it be said that the court is bound to appoint an insane person merely because the issue had not been presented in the objections filed? The answer is obvious. In Re Morgan's Estate, 209 Mich. 65, 176 N.W. 606, at page 609, it is said: "That some discretion rests in the probate court there can be no doubt. If a fair issue of fact is raised by the evidence of those denying the widow's competency because of unsound mind, lack of normal understanding or average intelligence [etc.], the discretion of the probate court can readily be conceded."
The case of In re Nickals' Estate, 21 Nev. 462, 34 P. 250, is cited in support of the proposition that incompetency must be alleged and proved. In that case the court uses the words "neither allegation nor proof." What the opinion of the court would have been had there been proof of incompetency remains open for speculation.
The argument made that only disqualifications set out in the statute can be recognized, while true, is not of much importance here, because of the fact that improvidence, the disqualification acted on by the lower court, is contained in our statute.
We conclude that if a statutory disqualification is made to appear by substantial evidence, a court has a right to use its discretion and act thereon and refuse to appoint a disqualified person, even though such disqualification may not be alleged in the written objections, believing such a holding to be necessary in order to permit a court to properly safeguard an estate and to withhold administration thereof from the hands of incompetent persons.