62 Wis. 130 | Wis. | 1885
This is a contest as to the right of administration upon an estate. It appears that Cyrus Sargent, a citizen of Grant county, died intestate in that county on the 29th clay of October, 1883, leaving a large estate of real and personal property in that county. He was unmarried, and without issue, and had no relatives at the time living in the state. Ilis only heirs at law are the appellant, a brother, and the respondent, an only surviving child of a deceased sister. These two persons take his estate in equal parts. We gather from the record that the brother lived in Essex county, New York, and that the niece was residing in Lynn, Massachusetts, when her uncle died. On the 12th of November, 1883, the respondent filed in the county court of Grant county her petition, setting forth the death of Cyrus Sargent, and stating that he died intestate, possessed of a large estate; that he was an inhabitant of that county at the time of his death; and requesting that letters of administration on his estate be granted to Robert C. Orr, who is an attorney residing at Lancaster, in that county. Notice was given, as required by law, of this application, and that the same would be heard on the 11th day of December, 1883, by the court. On that day the appellant, by Merritt
Our statute regulating the right of administration upon the estates of intestates provides that persons shall be, respectively, entitled to such administration in the following order: “ 1. The widow or next of kin, or both, as the county court may think proper, or such person as the widow or next of kin may request to have appointed, if suitable and competent to discharge the trust; 2, If the widow or next of kin, or the person selected by them, shall be unsuitable or incompetent, or if the widow and next of kin shall neglect for thirty days after the death of the intestate to apply for administration or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it; 3. If there be no widow, next of kin, or creditor competent ánd willing to take administration, the same may be committed to such other, person as the county court may think proper.” Sec. 3807, R. S.
In this case there was no widow; and, as we have said, the only heirs are the appellant and respondent, each of whom takes an equal portion of the estate. But neither asks to administer. The. fact that both are nonresidents may not absolutely disqualify them for the appointment, though it is the manifest policy of the statute not to favor the appointment of a nonresident as administrator. This is plain from sec. 3803, R. S., which expressly authorizes the county court to remove an administrator who “shall reside out of the state ” for that cause alone. But the statute gives the next of kin the right to select or “ request ” the appointment of a suitable person who is competent to discharge the
On the hearing of the application the court exercised its discretion and appointed Orr administrator; and we must presume that he is “ a suitable and competent ” person to discharge the trust. It is true, the appellant, by his attorney, objected to-this appointment and requested that letters of administration be granted to Merritt A. Clark; but the fact that Mr. Clark was not a resident of the state when administration was asked for, was a sufficient reason for not appointing him. Certainly the court might properly give controlling weight to that fact if he was otherwise a suitable and competent person. Nor would the objection of non-residence be overcome by the consideration that Clark would be able to give a good bond, with sureties, for the faithful performance of the trust. The statute gives the court a discretion in the matter, and its judgment and discretion must be guided by personal fitness, and various considerations affecting the appointment and the best interests of the estate.
The appellant’s counsel contend that the statute gives the appellant the prior right or preference in determining the choice of administrator. They say the words “ next of kin ”
An objection is taken that the respondent’s petition does not state facts sufficient to authorize the court to grant the same. This objection is untenable. The petition states all the essential facts necessary to put the court in motion in regard to the appointment of an administrator of that estate. It shows that Cyrus Sargent died intestate; that he was an inhabitant of Grant county at the time of his death; and that he left an estate within the jurisdiction of the colirt which required to be administered upon. This was sufficient to invest the court with jurisdiction in the matter of granting letters of administration to some suitable and competent person.
The matter before the court on the appeal was the correctness of the order of the county court granting letters of administration to Orr, and refusing them to Clark. It was not a case for a jury trial, or where the introduction of new evidence would have been proper. Indeed, there was no dispute about the real facts which controlled the decision of the case. The relation of these parties to the deceased appeared upon the face of the petitions. Also the place of
By the Court.— The order of the circuit court is affirmed. The taxable costs of both parties in this court will be paid out of the estate.