43 Ind. App. 620 | Ind. Ct. App. | 1909
John Ellis died intestate in Marion county. ITe left surviving him, as his only heirs, a widow, who was a nonresident of the State, Joseph Ellis, an insane son, and Annettie Cooper, a married woman, his daughter, whose husband refused to consent to her appointment as administratrix of the estate of said decedent. The decedent also left surviving him the appellee, his grandson, the son of his daughter and her husband, the appellant. The appellant applied for letters of administration upon the estate of the decedent, and the following day the appellee applied for like letters. The appellant’s petition was in the usual form, and showed that the widow of the decedent, and his next of bin who took an inheritable estate in the property left by him, were either disqualified or incompetent to act as administrator, and that the applicant was the largest creditor of the estate. The court refused to permit him to introduce proof of his qualification and competency to act as administrator, or to appoint him, and did appoint the appellee; and the question presented by the record in this appeal is whether the next of kin, qualified and competent to act as administrator of the estate of a person dying intestate, but who has no interest in the estate to be administered upon, is entitled to be preferred, in the granting of letters of administration, over a creditor of the estate.
The ground of appellant’s complaint against the action of the court below is that the court refused to entertain his application. This application antedated the appointment of the appellee, and whatever error of the court was committed in that respect was committed before the appellee’s appointment. We think the question is properly before us.
We are cited by appellee, in support of his contention, to the decision in the ease of Butler v. Perrott (1882), 1 Dem. Sur. (N. Y.) 9, and to the case of Lathrop v. Smith (1862), 24 N. Y. 417. While these cases do support the contention of appellee, we think they contravene the paramount principle upon which the statutes, fixing the order of preference of administration, are founded, as declared by all of the elementary authorities, and by the uniform decisions of courts of other states, and of the courts of England, from which our laws upon the subject are derived. The ease of Lathrop v. Smith, supra, was decided by a divided court, and the dissenting opinion rendered in the ease presents unanswerable reasons why the prevailing opinion should not be followed.
The judgment of the court below is reversed, with instructions to the court to set aside the letters of administration granted to the appellee, and to entertain appellant’s application for the same.