162 Ga. 126 | Ga. | 1926
The Court of Appeals has asked for instruction upon the following question: “A man died intestate, leaving no wife, nor any relatives except one sister, and the children and grandchildren of four deceased sisters and one deceased brother. The living sister was sui juris and qualified to administer on the estate, and so were the children of the intestate’s deceased brother and sisters.. Who was entitled to letters of administration, the person selected in writing by the sister of the intestate, or the person selected in writing by a majority of the children of the
We construe the decisions in Tanner v. Huss, 80 Ga. 614 (6 S. E. 18), and Megahee v. Megahee, 143 Ga. 738 (85 S. E. 877), as giving to the next of kin, or any person selected by her to act in her stead, a right of administration regardless of the wishes of distributees not so nearly related. As said in the Megahee case, supra, “As held by this court, the right to nominate an administrator is given to one who is next of kin at the time of death and who is interested as a distributee.” That ruling exactly fits the case stated in'the question, and is the judgment of a full bench. The sentence just quoted is completed by the words “and does not extend to the heir of the heir of the deceased,” which is immaterial, because the qualification referred only to the facts in the Megahee case.
The precise point now before us was not involved in the case of Mattox v. Embry, 131 Ga. 283 (62 S. E. 202), but the importance attaching to the degree of relationship as affecting the grant of letters of administration was pointed out and stressed. Mr. Justice Atkinson, in delivering the opinion of the court and discussing its salient features, says: “Another of the six had also conveyed his interest in the land as security for a debt which was overdue and unpaid, but that did not amount to a surrender of his right to express a choice in selecting the administrator. He continued to be one of the class, ‘next of kin equally near in degree to the deceased/ and had an equitable interest in the property left, to wit, the right to redeem; and it was that relationship which, under the Civil Code, § 3367, par. 3 [§ 3943 Code 1910], gave him a right to a voice in the selection of an administrator. . . It appeared that the daughter of the deceased, who married G. A. Webb, had died and left surviving her seven children. It was contended that each of them was entitled to a vote as next of kin in the selection of an administrator, and that, if they were to be contemplated, the six next of kin who had selected Embry did not amount to a majority of all of the next of kin. We do not think
While it has several times been held by this court that in the selection of an administrator the law of relationship should not be relied upon to the exclusion of that of distribution (Murdock v. Hunt, 68 Ga. 164; Raburn v. Bradshaw, 124 Ga. 552, 52 S. E. 922), still it must be borne in mind that section 3931 and section 3943 (Civil Code 1910) should both be considered in the grant of letters testamentary. Subsection 3 of section 3943 provides that “If there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate . . shall be appointed.” Subsection 2 of- this section, that the next of kin shall be entitled to the administration, is mandatory; and in a contest between a sole surviving sister of an intestate upon the one hand and mere nieces and nephews of the intestate on the other, the provisions of section 3931 as to the rules of inheritance must be considered. Subsection 4 of section 3931 declares that children stand in the first degree. Under subsection 5 brothers and sisters of the intestate stand in the second degree, and of course the children of brothers and sisters, to wit, nieces and nephews, will stand one degree further removed in relationship to the intestate. In the instance proposed in the present question there are no heirs in the first degree. The intestate had no children. There is only one in the second degree, the surviving sister. Unless this sister, who stands in the second degree, desired to forego her right to administer the estate of the intestate, any action upon the part of the nieces and nephews in the selection of an administrator would be nugatory. The proximity of relationship to an intestate in a degree has been frequently referred to in the distribution of estates. In Ector v. Grant, 112 Ga. 557 (37 S. E. 984, 53 L. R. A. 723), a first cousin