¶1delivered the opinion of the court.
¶2In the District Court of Aguadilla, on May 16, 1916, Antonio Díaz Hernández made an application to he named as tutor of three minor children, a nephew and two nieces of the petitioner. The petition also recited that the said three minor children had an older sister, Guadalupe Diaz, aged twenty-two, but that by reason of her being a woman and living in the country and having a very limited education, she did not wish, nor was it possible for her to assume, the tutorship of the three minor children. On this showing and without any formal notice to the said Guadalupe Diaz the District Court of Aguadilla appointed Antonio Díaz Her-nández as tutor. On July 5, 1916, the said Guadalupe Diaz made an application to the District Court of Aguadilla wherein she set up, among other, things, her desire to be *505named as tutor, that she was not notified of the petition of the said Antonio Díaz Hernández, and she ashed .that the' appointment he set aside and she be appointed instead.
¶3There was a trial, proof and judgment, the court refusing to set aside the appointment because the said Guadalupe Diaz had not set up any of the reasons for the removal that are mentioned in section 266 of the Civil Code, and because it was to the interest of the minors that they continue ■ under the tutorship of their uncle.
¶4Section 266 of the Civil Code presupposes an appointment, legal in form, after the notice. It has no application to a case where a person who has a preference in the appointment has ■ never been notified. Nor does it make any difference that the petition of the appellant has in form some of the characteristics of an application to remove made by virtue of said section 266. The petition was very clear in setting ■up the lack of notice? and asking that the appointment be set aside.
¶5We are inclined to agree with the court below that the proof shows that the interests of the minors would he best conserved by the continuance of Antonio Díaz Hernández as tutor, but although Guadalupe Diaz had some overtures with Antonio Diaz, we are satisfied that she neither directly nor indirectly waived her right to he appointed.
¶6Under section 248 of the Civil Code the order of nomination is prescribed and the eldest sister is to be preferred where there are no ascendants and where she has none of the disqualifications contained in section 265 of that code. The law is conclusive.
¶7In any event, if there was any objection to the sister it should have been formally made. She was entitled to be heard in the first place. • While objections may still be made to her appointment under section 265, the appointment of Antonio Díaz Hernández must be set aside as unduly made, especially in the absence of a notice to appellant.
¶8*506The order appealed from must be
¶9Reversed.